The ECP provides cost-share assistance to farmers and ranchers to rehabilitate farmland damaged by wind erosion, floods, hurricanes, or other natural disasters, and for carrying out emergency water conservation measures during periods of severe drought.

The 2007 Emergency Supplemental (Pub. L. 110-28) appropriated $16 million for the ECP. The 2007 Emergency Supplemental also required that the Adjusted Gross Income (AGI), 7 U.S.C. 1308-3a, apply to this $16 million.

This regulation incorporates the AGI provisions into the ECP. This will be the first time the AGI will be applied to the ECP; however, it has been used with other programs administered by FSA.

The use of the AGI limitation is addressed in the regulations in 7 CFR part 1400, subpart G, Average Adjusted Gross Income Limitation (sections 1400.600—1400.603). Section 1400.600 specifies applicability of the AGI limitation. In general, an individual or entity is not eligible for certain program benefits during a crop, program, or fiscal year, if (1) the preceding three-year average of the AGI for the individual or entity exceeds $2.5 million and (2) less than 75 percent of the average AGI is derived from farming, ranching, or forestry operations. Section 1400.601 specifies the determination of average adjusted gross income. Section 1400.602 specifies the information applicants must provide to comply with the regulations. Section 1400.603 specifies the amount payment will be reduced commensurate with the AGI limitation.

All other aspects of the ECP will continue to operate in the current manner; this change incorporating the AGI limitation will only apply to payment eligibility for the newly-funded $16 million. Other ECP program funds may be available for which the AGI provision does not apply. Other than the addition of the AGI limitation for the newly funded $16 million, current ECP regulations remain unchanged.

Due to the non-discretionary nature of this regulatory change, notice and public comment are impracticable, unnecessary, or contrary to the public interest. The 2007 Emergency Supplemental required that FSA apply the AGI to the ECP for payments under the newly-funded $16 million. FSA will apply the AGI as it does for other programs it administers; the current AGI regulations will remain unchanged. Further, allowing the rule to be effective upon publication will allow FSA to fully implement the change and more quickly distribute the $16 million to provide cost-share assistance to farmers and ranchers to rehabilitate farmland damaged by wind erosion, floods, hurricanes, or other natural disasters, and for carrying out emergency water conservation measures during periods of severe drought. Therefore, a proposed rule is not required and this regulatory change is being issued as a final rule.

This rule has been determined to be not significant under Executive Order 12866 and has been reviewed by the Office of Management and Budget.

This rule is not subject to the Regulatory Flexibility Act since the FSA is not required to publish a notice of proposed rulemaking for this rule.

FSA has determined that the application of the AGI limitation to distribute certain funds for the Emergency Conservation Program (ECP) does not constitute a major Federal action that would significantly affect the human or natural environment. Consistent with the National Environmental Policy Act (NEPA), 40 CFR part 1502.4, major Federal actions requiring the preparation of Environmental Impact Statements, and 7 CFR Part 799: Environmental Quality and Related Environmental Concerns—Compliance with NEPA implementing the regulations of the Council on Environmental Quality, 40 CFR parts 1500-1508, no environmental assessment or environmental impact statement will be prepared for this final rule.

This program is not subject to the provisions of Executive Order 12372, which requires intergovernmental consultation with State and local officials. See the Notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115 (June 24, 1983).

This rule does not have Federalism implications that warrant the preparation of a Federalism Assessment. This rule will not have a substantial direct effect on States or their political subdivisions or on the distribution of power and responsibilities among the various levels of government.

This rule has been reviewed in accordance with Executive Order 12988. This final rule is not retroactive and it does not preempt State law. Before any judicial action may be brought regarding the provisions of this rule the administrative appeal provisions of 7 CFR parts 11 and 780 must be exhausted.

This rule contains no Federal mandates under the regulatory provisions of Title II of the UMRA for State, local, and tribal government or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.

The Office of Management and Budget (OMB) previously approved the information collection requirements of the ECP under OMB control number 0560-0082. This rule will not change those information collection requirements. A separate notice requesting comments was published in the Federal Register on July 26, 2007 (72 FR 41051) for the information collection requirements for the collection of AGI information.

FSA is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

The title and number of the Federal Assistance Program, as found in the Catalog of Federal Domestic Assistance, to which this rule applies are: Emergency Conservation Program (ECP)—10.054.

Background

Section 218(a) of the Nuclear Waste Policy Act of 1982, as amended (NWPA), requires that “[t]he Secretary [of the Department of Energy (DOE)] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear power reactor sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the NWPA states, in part, that “[t]he Commission shall, by rule, establish procedures for the licensing of any technology approved by the Commission under Section 218(a) for use at the site of any civilian nuclear power reactor.”

To implement this mandate, the NRC approved dry storage of spent nuclear fuel in NRC-approved casks under a general license by publishing a final rule in 10 CFR part 72, which added a new Subpart K within 10 CFR part 72, entitled “General License for Storage of Spent Fuel at Power Reactor Sites” (55 FR 29181; July 18, 1990). This rule also established a new Subpart L within 10 CFR part 72, entitled “Approval of Spent Fuel Storage Casks,” which contains procedures and criteria for obtaining NRC approval of spent fuel storage cask designs. The NRC subsequently issued a final rule on April 28, 2000 (65 FR 24855), that approved the TN-68 cask design and added it to the list of NRC-approved cask designs in 10 CFR 72.214 as CoC No. 1027.

On January 14, 2005, and as supplemented on July 15 and November 15, 2005; September 22 and December 8, 2006; and February 22, March 16, and March 23, 2007; the certificate holder, Transnuclear, Inc. (TN), submitted an application to the NRC that requested an amendment to CoC No. 1027. Specifically, TN requested revisions to several fuel parameters of the TN-68 cask design that included increasing fuel burnup to 60 gigawatts-day/metric ton of uranium (GWd/MTU), increasing total cask decay heat to 30 kilowatts (kW), increasing maximum average fuel enrichment to 4.7 weight percent uranium-235, and decreasing minimum fuel assembly cooling time to 7 years. The application also requested adding up to eight damaged fuel assemblies as authorized contents of the cask and reducing the cask spacing on the storage pad. No other changes to the TN-68 dry storage cask system were requested in this application. As documented in the SER, the NRC staff performed a detailed safety evaluation of the proposed CoC amendment request and found that an acceptable safety margin is maintained. In addition, the NRC staff has determined that there continues to be reasonable assurance that public health and safety and the environment will be adequately protected.

This direct final rule revises the TN-68 dry storage cask system listing in 10 CFR 72.214 by adding Amendment No. 1 to CoC No. 1027. The amendment consists of the changes described above as set forth in the revised CoC and TS. The particular TS which are changed are identified in the SER.

The amended TN-68 cask design, when used under the conditions specified in the CoC, the TS, and NRC regulations, will meet the requirements of Part 72; thus, adequate protection of public health and safety will continue to be ensured. Once this direct final rule becomes effective, persons who hold a general license under 10 CFR 72.210 may load spent nuclear fuel into TN-68 casks that meet the criteria of Amendment No. 1 to CoC No. 1027, in accordance with 10 CFR 72.212.

Certificate No. 1027 is revised by adding the initial certificate effective date of May 30, 2000, and the effective date of Amendment No. 1.

This rule is limited to the changes contained in Amendment No. 1 to CoC No. 1027 and does not include other aspects of the TN-68 dry storage cask system. The NRC is using the “direct final rule procedure” to issue this amendment because it represents a limited and routine change to an existing CoC that is expected to be noncontroversial. Adequate protection of public health and safety continues to be ensured. The amendment to the rule will become effective on October 30, 2007. However, if the NRC receives significant adverse comments on this direct final rule by September 17, 2007, then the NRC will publish a document that withdraws this action and will subsequently address the comments received in a final rule as a response to the companion proposed rule published elsewhere in this issue of the Federal Register . Absent significant modifications to the proposed revisions requiring republication, the NRC will not initiate a second comment period on this action.

A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:

(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required when:

(a) The comment causes the NRC staff to reevaluate (or reconsider) its position or conduct additional analysis;

(b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or

(c) The comment raises a relevant issue that was not previously addressed or considered by the NRC staff.

(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.

(3) The comment causes the NRC staff to make a change (other than editorial) to the rule, CoC, or TS.

The National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this direct final rule, the NRC will revise the TN-68 cask design listed in § 72.214 (List of NRC-approved spent fuel storage cask designs). This action does not constitute the establishment of a standard that contains generally applicable requirements.

Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the Federal Register on September 3, 1997 (62 FR 46517), this rule is classified as Compatibility Category “NRC.” Compatibility is not required for Category “NRC” regulations. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the Atomic Energy Act of 1954, as amended (AEA), or the provisions of Title 10 of the Code of Federal Regulations. Although an Agreement State may not adopt program elements reserved to NRC, it may wish to inform its licensees of certain requirements via a mechanism that is consistent with the particular State's administrative procedure laws but does not confer regulatory authority on the State.

The Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883), directed that the Government's documents be in clear and accessible language. The NRC requests comments on this direct final rule specifically with respect to the clarity and effectiveness of the language used. Comments should be sent to the address listed under the heading ADDRESSES , above.

Under the National Environmental Policy Act of 1969, as amended, and the NRC regulations in Subpart A of 10 CFR Part 51, the NRC has determined that this rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. The NRC has prepared an environmental assessment and, on the basis of this environmental assessment, has made a finding of no significant impact. This rule will amend the CoC for the TN-68 cask design within the list of approved spent fuel storage casks that power reactor licensees can use to store spent fuel at reactor sites under a general license. The amendment will revise several fuel parameters that include increasing fuel burnup to 60 GWd/MTU, increasing total cask decay heat to 30 kW, increasing maximum average fuel enrichment to 4.7 weight percent uranium-235, and decreasing minimum fuel assembly cooling time to 7 years. The amendment will also add up to eight damaged fuel assemblies as authorized contents of the cask and reduce the cask spacing on the storage pad. The environmental assessment and finding of no significant impact on which this determination is based are available for inspection at the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD. Single copies of the environmental assessment and finding of no significant impact are available from Jayne M. McCausland, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-6219, e-mail jmm2@nrc.gov.

This direct final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Existing requirements were approved by the Office of Management and Budget, Approval Number 3150-0132, 10 CFR Part 72.

The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number.

On July 18, 1990 (55 FR 29181), the NRC issued an amendment to 10 CFR part 72 to provide for the storage of spent nuclear fuel under a general license in cask designs approved by the NRC. Any nuclear power reactor licensee can use NRC-approved cask designs to store spent nuclear fuel if it notifies the NRC in advance, spent fuel is stored under the conditions specified in the cask's CoC, and the conditions of the general license are met. A list of NRC-approved cask designs is contained in 10 CFR 72.214. On April 28, 2000 (65 FR 24855), the NRC issued an amendment to Part 72 that approved the TN-68 cask design by adding it to the list of NRC-approved cask designs in 10 CFR 72.214. On January 14, 2005, and as supplemented on July 15 and November 15, 2005; September 22 and December 8, 2006; and February 22, March 16, and March 23, 2007; the certificate holder, TN, submitted an application to the NRC to amend CoC No. 1027 to revise several fuel parameters that included increasing fuel burnup to 60 GWd/MTU, increasing total cask decay heat to 30 kW, increasing maximum average fuel enrichment to 4.7 weight percent uranium-235, and decreasing minimum fuel assembly cooling time to 7 years. The application also requested adding up to eight damaged fuel assemblies as authorized contents of the cask and reducing the cask spacing on the storage pad.

The alternative to this action is to withhold approval of Amendment No. 1 and to require any part 72 general licensee, seeking to load spent fuel into TN-68 casks under Amendment No. 1, to request an exemption from the requirements of 10 CFR 72.212 and 72.214. Under this alternative, each interested Part 72 licensee would have to prepare, and the NRC would have to review, a separate exemption request, thereby increasing the administrative burden upon the NRC and the costs to each licensee.

Approval of the direct final rule is consistent with previous NRC actions. Further, as documented in the SER and the environmental assessment, the direct final rule will have no adverse effect on public health and safety. This direct final rule has no significant identifiable impact or benefit on other Government agencies. Based on this regulatory analysis, the NRC concludes that the requirements of the direct final rule are commensurate with the NRC's responsibilities for public health and safety and the common defense and security. No other available alternative is believed to be as satisfactory, and thus, this action is recommended.

Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the NRC certifies that this rule will not, if issued, have a significant economic impact on a substantial number of small entities. This direct final rule affects only nuclear power plant licensees and TN. These entities do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the size standards established by the NRC (10 CFR 2.810).

The NRC has determined that the backfit rule (10 CFR 72.62) does not apply to this direct final rule because this amendment does not involve any provisions that would impose backfits as defined in 10 CFR Chapter I. Therefore, a backfit analysis is not required.

Under the Congressional Review Act of 1996, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs, Office of Management and Budget.

In the Federal Register of November 21, 1997 (62 FR 62466), FDA described its procedures on when and how the agency will employ direct final rulemaking. We have determined that this rule is appropriate for direct final rulemaking because we believe that it is noncontroversial and we anticipate no significant adverse comments. Consistent with our procedures on direct final rulemaking, FDA is publishing elsewhere in this issue of the Federal Register a companion proposed rule on the same subject matter. The companion proposed rule provides a procedural framework within which the rule may be finalized in the event that the direct final rule is withdrawn because of any significant adverse comment. The comment period for the direct final rule runs concurrently with the companion proposed rule. Any comments received in response to the companion proposed rule will be considered as comments regarding the direct final rule.

We are providing a comment period on the direct final rule of 75 days after the date of publication in the Federal Register . If we receive any significant adverse comments, we intend to withdraw this direct final rule before its effective date by publication of a notice in the Federal Register . A significant adverse comment is defined as a comment that explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. In determining whether an adverse comment is significant and warrants terminating a direct final rulemaking, we will consider whether the comment raises an issue serious enough to warrant a substantive response in a notice-and-comment process in accordance with section 553 of the Administrative Procedure Act (5 U.S.C. 553). Comments that are frivolous, insubstantial, or outside the scope of the rule will not be considered significant or adverse under this procedure. A comment recommending a regulation change in addition to those in the rule would not be considered a significant adverse comment unless the comment states why the rule would be ineffective without additional change. In addition, if a significant adverse comment applies to an amendment, paragraph, or section of this rule and that provision can be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of a significant adverse comment.

If any significant adverse comments are received during the comment period, FDA will publish, before the effective date of this direct final rule, a document withdrawing the direct final rule. If we withdraw the direct final rule, any comments received will be applied to the proposed rule and will be considered in developing a final rule using the usual notice-and-comment procedures.

If FDA receives no significant adverse comments during the specified comment period, FDA intends to publish a document, before the effective date of the direct final rule, confirming the effective date.

FDA is issuing this new rule under the biological products and communicable diseases provisions of the Public Health Service Act (PHS Act)(42 U.S.C. 262-264), and the drugs, devices, and general administrative provisions of the Federal Food, Drug, and Cosmetic Act (the act)(21 U.S.C. 321, 331, 351-353, 355, 360, 360j, 371, and 374). Under these provisions of the PHS Act and the act, we have the authority to issue and enforce regulations designed to ensure that biological products are safe, pure, potent, and properly labeled, and to prevent the introduction, transmission, and spread of communicable disease.

FDA is amending the biologics regulations by removing, revising, or updating specific regulations applicable to blood, blood components, and Source Plasma to be more consistent with current practices in the blood industry and to remove unnecessary or outdated requirements. We are issuing these amendments as a direct final rule because we have concluded that they are noncontroversial and that there is little likelihood that there will be comments opposing the rule. Any comment recommending additional changes to these regulations will not be considered to be a “significant adverse comment” unless the comment demonstrates that the change being made in the direct final rule represents a major departure from current regulations or accepted industry standards, or cannot be implemented without additional amendments to the regulation. Below we identify each of the changes included in this direct final rule.

We are amending 21 CFR 606.3(i) by revising the definition of “processing” to mean any procedure employed after collection and before “or after” compatibility testing of blood. The current regulation states that processing means any procedure employed after collection and before compatibility testing of blood. Because blood components occasionally are further processed after compatibility testing has been performed, we are revising this definition.

We are amending 21 CFR 607.65(f) by removing the words “approved for Medicare reimbursement and” and replacing with the words “that is certified under the Clinical Laboratory Improvement Amendments of 1988 (42 U.S.C. 263a) and 42 CFR part 493 or has met equivalent requirements as determined by the Centers for Medicare and Medicaid Services and which are”. As a result of the Clinical Laboratory Improvement Amendments of 1988 (CLIA) and the implementing regulations adopted by the Centers for Medicaid and Medicare Services (CMS), the inspection regime relied on in a 1983 Memorandum of Understanding (MOU) between FDA and the Health Care Financing Administration (HCFA), now CMS, will be modified. Under the CLIA program, clinical laboratories must be surveyed by CMS (either directly or through a State survey agency), unless they are located in a CLIA-approved State, or are accredited by a CMS-approved accreditation organization. CLIA regulations apply to clinical laboratories regardless of whether or not the laboratories seek Medicare participation. FDA is amending this regulation to make it consistent with updates in the CMS regulations.

We are amending 21 CFR 610.53(c) by revising the dating period in the table for Platelets, Red Blood Cells Deglycerolized, and Red Blood Cells Frozen. Although the current recommended dating period will remain unchanged for Platelets and Red Blood Cells Deglycerolized, we are adding that a different dating period could apply for these products if so specified in the directions for use for the blood collecting, processing, and storage system approved for such use by the Director, Center for Biologics Evaluation and Research (CBER). This change will allow for flexible dating periods depending on the type of collecting, processing, and storage system used. In addition, under Red Blood Cells Frozen, we are revising the dating period from 3 years to 10 years, or as specified in the directions for use for the blood collecting, processing, and storage system approved for such use by the Director, CBER. This change will allow for flexible dating periods depending on the type of collecting, processing, and storage system used.

Under § 640.4(h) (21 CFR 640.4(h)), we are revising the temporary storage temperature for blood that is transported from the donor center to the processing laboratory. We are revising the range to between 1 and 10 ° C until the blood arrives at the processing laboratory. We are making this revision to be consistent with 21 CFR 600.15 which allows for shipping temperatures of Whole Blood to be from 1 to 10 ° C, and for consistency with current industry practice. In addition, we are revising the applicability of this requirement to Whole Blood unless it is to be further processed into another component, such as Platelets or Red Blood Cells Leukocytes Reduced. The current regulation applies only to Whole Blood unless the blood is to be used as a source for Platelets. This change will clarify that processing Whole Blood into other components, in addition to Platelets, is acceptable. For Whole Blood that is to be processed into another component, we are revising this regulation to state that the blood must be stored in an environment maintained at a temperature range that is specified for that component in the directions for use for the blood collecting, processing, and storage system approved for such use by the Director, CBER. We are also amending the term donor “clinic” to donor “center” for consistency with § 640.4(b) and current terminology.

We are removing and reserving § 640.21(b) (21 CFR 640.21(b)) because this provision is obsolete, as well as removing the reference to plasmapheresis in 21 CFR 640.20(b). Improvements in technology now allow establishments to collect Platelets by automated methods eliminating the need for the collection of platelets by manual plasmapheresis. Currently, establishments may collect Platelets by automated platelet-specific apheresis collection procedures. We are amending § 640.21(c) by adding that plateletpheresis donors must meet the criteria for suitability as prescribed in 21 CFR 640.3 and 640.63(c)(6), or as described in an approved biologics license application (BLA) or an approved supplement to a BLA, and that informed consent must be obtained as prescribed in 21 CFR 640.61. This revision will clarify that registered facilities must follow the suitability requirements for plateletpheresis donors.

We are removing and reserving § 640.22(b) (21 CFR 640.22(b)) because this regulation is obsolete. As previously mentioned, improvements in technology now allow establishments to collect Platelets by automated methods, eliminating the need for the collection of platelets by manual plasmapheresis. Currently, establishments may collect Platelets by automated platelet-specific apheresis collection procedures. We are amending § 640.22(c) by adding that if plateletpheresis is used, the procedure for collection must be as prescribed in 21 CFR 640.62 - Medical supervision ; 21 CFR 640.64 - Collection of blood for Source Plasma ; and 21 CFR 640.65 - Plasmapheresis , or as described in an approved BLA or an approved supplement to a BLA. This revision will clarify that registered facilities must follow the collection of source material requirements for plateletpheresis donors.

We are amending 21 CFR 640.24(a) to allow Platelets to be pooled under certain circumstances. That is, Platelets may be pooled if such processing is specified in the directions for use for the blood collecting, processing, and storage system approved for such use by the Director, CBER. We are amending the regulation to provide flexibility depending on the type of collecting, processing, and storage system used.

We are amending 21 CFR 640.25(b)(2) by revising the pH level from “6.0” to “6.2” for consistency with current industry practice. Studies have shown that a lower pH may adversely affect platelet function (Refs. 1 and 2).

We are amending 21 CFR 640.30(a) by revising the term “product,” to “component,” for consistency with current terminology of the proper name. We are also adding an alternative definition of Plasma, namely, “The fluid portion of human blood intended for intravenous use which is prepared by apheresis methods as specified in the directions for use for the blood collecting, processing, and storage system including closed and open systems.” We are making this change because Plasma is now collected by other methods, such as apheresis collection, in addition to being collected as a byproduct of Whole Blood collection.

We are amending 21 CFR 640.32(a) to add that a different storage temperature may be used for Whole Blood intended for further manufacturing into Plasma, Fresh Frozen Plasma, or Liquid Plasma. Any different storage temperature would be specified in the directions for use for the blood collecting, processing, and storage system. This change will allow for flexible storage temperatures depending on the particular type of system used.

We are amending 21 CFR 640.34(b) by adding the phrase “or collected by an apheresis procedure” in the second sentence to clarify that this section also applies to plasma collected by aphersis procedures. We require that fresh frozen plasma using the apheresis procedure also be prepared from blood collected by a single uninterrupted venipuncture with minimal damage to, and minimal manipulation of, the donor's tissue.

We are amending § 640.64(b) (21 CFR 640.64(b)) by removing the second sentence that states, “The amount of anticoagulant required for the quantity of blood to be collected shall be in the blood container when it is sterilized.” This sentence is being removed because of technological advances. Now, the anticoagulant does not always have to be in the collection set. The anticoagulant can be connected by a “sterile docking” procedure or attached separately, as is the case with automated apheresis collection. We are also amending § 640.64(c) by removing the specific anticoagulant solution formulas and indicating that the anticoagulant solutions must be compounded and used according to a formula approved by the Director, CBER. We have determined that it is unnecessary to provide specific formulae for anticoagulant solutions in the regulations, and that manufacturers should be able to use any anticoagulant approved by FDA for such use by the manufacturer.

We have also revised the previous regulations, where applicable, by using “must” or “is” instead of “shall”, depending on the circumstances. We have made these revisions for plain language purposes. These editorial changes are for clarity only and do not change the substance of the requirements. We will continue to make these changes in other applicable regulations as they are revised in future rulemakings. In addition, we will continue to make the change from “product” to “component” in other applicable regulations as they are revised in future rulemakings.

FDA has examined the impacts of the direct final rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The agency believes that this direct final rule is not a significant regulatory action as defined by the Executive order.

The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because the direct final rule amendments have no compliance costs and do not result in any new requirements, the agency certifies that the direct final rule will not have a significant economic impact on a substantial number of small entities.

Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $122 million, using the most current (2005) Implicit Price Deflator for the Gross Domestic Product. FDA does not expect this direct final rule to result in any 1-year expenditure that would meet or exceed this amount.

The agency has determined, under 21 CFR 25.31(h), that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

FDA has analyzed this direct final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the direct final rule does not contain policies that have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the agency has concluded that the direct final rule does not contain policies that have federalism implications as defined in the Executive order and, consequently, a federalism summary impact statement is not required.

This direct final rule contains no collections of information. Therefore, clearance by OMB under the Paperwork Reduction Act of 1995 is not required.

Interested persons may submit to the Division of Dockets Management (see ADDRESSES ) written or electronic comments regarding this document. Submit a single copy of electronic comments or two paper copies of any mailed comments, except that individuals may submit one paper copy. Comments are to be identified with the docket number found in brackets in the heading of this document. Received comments may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

The following references have been placed on display in the Division of Dockets Management (see ADDRESSES ), and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday.

Section 7209 of the Intelligence Reform and Terrorism Prevention Act (IRTPA), enacted on December 17, 2004, requires the Secretary of Homeland Security, in consultation with the Secretary of State, to develop expeditiously a plan to require most U.S. citizens and certain other categories of individuals to present a passport or other documentation of identity and citizenship deemed sufficient by the Secretary of Homeland Security when entering the United States.

The Department of State's Office of Passport Services (Passport Services) began planning for increased passport demand even before Congress passed IRTPA. It planned for a sharp increase in passport applications and anticipated the need for increased staff to handle the demand. Recognizing the uncertainty of passport demand and the need for reliable information to guide its planning efforts, Passport Services contracted for a passport demand study in 2005, and used the data from this study to initiate a program of resource upgrades for meeting demand.

Beginning in February 2007, it became apparent that passport demand was growing faster than the study projected. While the demand study anticipated a sharp increase in applications, it did not fully anticipate the degree and speed with which the American people would comply with Western Hemisphere Travel Initiative (WHTI) guidelines. Therefore, Passport Services has implemented additional short-term and more long-term measures to attempt to address the increase in passport demand and provide Americans with passports in a timely and secure manner.

Despite these efforts, the surge in passport applications has led to increases in processing times, and concurrent increases in requests from the public for expedited passport processing. 22 CFR 51.66(b) currently sets a 3-business-day standard for processing expedited passport applications, commencing when the application reaches a Passport Agency or, if the application is already with a Passport Agency commencing when the request for expedited processing is approved. This standard was set by the Department in 1994, (59 FR 48998 (Sep. 26, 1994)), to allow Passport Services to provide expedited services to applicants with urgent departures, and to recover the costs of providing such service. In order to allow Passport Services the flexibility to meet the surge in demand for expedited processing, and to continue to offer this service to the public consistent with its regulations, Passport Services is revising this standard.

Under the new standard, the public will be notified on the Department's Web site, http://www.travel.state.gov, of the number of business days in which the Department is completing expedited processing. This will allow the Department flexibility to alert the public without delay of the current processing time for expedited requests. The public benefits from this change by having accurate notice of the service that will be provided to them and from having the service available from the Department. We believe this will allow the public to continue to consider using expedited processing to self-select urgent cases.

We are also amending the Schedule of Fees for Consular Services to reflect this change in the expedited passport processing rule.

The Department is publishing this rule as an interim final rule, with a 60-day provision for post-promulgation public comments, based on the “good cause” exceptions set forth at 5 U.S.C. 553(b)(3)(B) and 553(d)(3). Publishing the rule this way will allow the Department to make the rule effective at the earliest opportunity, ensuring that Passport Services may continue to offer this service to the public without interruption and consistent with its regulations. The public benefits from having the service available because it allows persons wishing to obtain a passport for urgent travel or other reasons to have their passport applications processed on an expedited basis. Therefore, allowing a comment period followed by a publication of the final rule with a further 30 days before its effective date is not practicable or in the public interest. Comments received before the end of the comment period will be addressed in a final rule.

The Department of State, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation, and, by approving it, certifies that this rule is not expected to have a significant economic impact on a substantial number of small entities because only individuals can apply for passports.

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of the U.S.-based companies to compete with foreign based companies in domestic and import markets.

OMB considers this rule to be a “significant regulatory action” under Executive Order 12866, section 3(f). Accordingly, this rule has been submitted to OMB for review. In addition, the Department is exempt from Executive Order 12866 except to the extent that it is promulgating regulations, in conjunction with a domestic agency, that are significant regulatory actions. The Department has nevertheless reviewed the regulation to ensure its consistency with the regulatory and philosophy and principles set forth in Executive Order 12866.

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement.

This rule does not impose any new reporting or recordkeeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

The temporary regulations that are the subject of this correction are under section 6033 of the Internal Revenue Code.

As published, temporary regulations (TD 9335) contain an error that may prove to be misleading and is in need of clarification.

The temporary regulations that are the subject of this correction are under section 6033 of the Internal Revenue Code.

As published, temporary regulations (TD 9335) contain an error that may prove to be misleading and is in need of clarification.

Accordingly, the publication of the temporary regulations (TD 9335), which was the subject of FR Doc. E7-12903, is corrected as follows:

On page 36870, column 1, first paragraph of the column, in the preamble, under the paragraph heading “ Background ”, last line of the paragraph, the language “4965 tax. See § 601.601(d)(2)(ii)( b ).” is corrected to read “4965 tax. See § 601.601(d)(2)(ii)( b ) of this chapter.”

This document contains amendments to 26 CFR parts 1 and 301. On October 18, 2005, a notice of proposed rulemaking (REG-114371-05) was published in the Federal Register (70 FR 60475) proposing to treat qualified subchapter S subsidiaries (QSubs) (under section 1361(b)(3)(B) of the Internal Revenue Code (Code)) and certain other single-owner eligible entities (under §§ 301.7701-1 through 301.7701-3 of the Procedure and Administrative Regulations) that currently are disregarded as entities separate from their owners (disregarded entities) as separate entities for purposes of employment tax and related reporting requirements and for purposes of certain excise taxes reported on Forms 720, 730, 2290, and 11-C; excise tax refunds or payments claimed on Form 8849; and excise tax registrations on Form 637. Comments addressing employment taxes were received from the public in response to the notice of proposed rulemaking. No comments were received regarding the excise tax provisions of the proposed regulations. No public hearing was requested or held. After consideration of all the comments, the proposed regulations are adopted as revised by this Treasury decision.

As provided in the proposed regulations, the final regulations provide that a disregarded entity is treated as a separate entity for purposes of employment taxes and related reporting requirements. The final regulations clarify that the separate entity is treated as a corporation for purposes of employment taxes and related reporting requirements. As provided in the proposed regulations, a disregarded entity continues to be disregarded for other Federal tax purposes. The final regulations clarify that an owner of a disregarded entity treated as a sole proprietorship is subject to taxes under the Self-Employment Contributions Act (SECA) (section 1401 et seq.). Additionally, the final regulations retain the example illustrating that an individual owner of a disregarded entity continues to be treated as self-employed for purposes of SECA taxes, and not as an employee of a disregarded entity for employment tax purposes.

Commentators suggested that the proposed regulations not be finalized, and that Notice 99-6 (1999-1 CB 321) be retained. Notice 99-6 provides that employment taxes and other employment tax obligations with respect to employees of a disregarded entity may be satisfied in one of two ways: (1) Calculation, reporting, and payment of all employment tax obligations with respect to employees of the disregarded entity by its owner (as though the employees of the disregarded entity are employed directly by the owner) and under the owner's name and taxpayer identification number; or (2) separate calculation, reporting, and payment of all employment tax obligations by each state law entity with respect to its employees under its own name and taxpayer identification number.

Commentators stated that the regulations would increase administrative burden for taxpayers that currently choose to pay and report employment taxes at the owner level as permitted by Notice 99-6. Commentators also suggested that if the regulations were finalized, complications could arise for states where state employment tax filings are required at the owner level. No written comments were received from any state. The IRS and the Treasury Department continue to believe that recognizing disregarded entities as employers for Federal employment taxes will improve administration of the Federal tax laws and simplify Federal tax compliance with respect to reporting, payment, and collection of employment taxes. In addition, because most states recognize disregarded entities as employers for reporting, payment, and collection of state employment taxes, these regulations will more closely align Federal and state reporting, payment and collection of employment taxes. Accordingly, this comment is not adopted.

One commentator requested clarification of the applicability of section 3306(c)(8) to services performed for a disregarded entity that is owned by an organization described in section 501(c)(3). Section 3306(c)(8) provides that services performed for an organization described in section 501(c)(3) are excepted from the definition of employment for Federal Unemployment Tax Act (FUTA) purposes. Even though a disregarded entity owned by a section 501(c)(3) organization will be regarded for employment tax purposes, the disregarded entity will continue to be considered an unincorporated branch or division of the section 501(c)(3) organization for other Federal tax purposes. For example, the disregarded entity will be considered an unincorporated branch or division of the section 501(c)(3) organization for purposes of the organization's annual information reporting requirements under section 6033. See Announcement 99-102 (1999-2 CB 545). Because section 3306(c)(8) looks to the employer's status for income tax purposes to establish the basis for exemption from FUTA, a disregarded entity owned solely by a section 501(c)(3) organization is considered exempt from tax under section 501(c)(3) for purposes of section 3306(c)(8). Thus, a disregarded entity owned solely by a section 501(c)(3) organization will not be subject to FUTA tax on wages it pays its employees.

One commentator requested clarification of the applicability of the backup withholding provisions under section 3406 to disregarded entities. Section 3406 requires the payor of certain “reportable payments” to withhold from such payments a tax at the rate of 28 percent. For instance, if the payee where required to do so does not provide a valid taxpayer identification number (TIN) to the payor, the payor must backup withhold on reportable payments to the payee. Reportable payments are payments that must be reported to a payee on Form 1099, “U.S. Information Return for Calendar Year 1971,” such as certain payments for services made in the course of a trade or business. Wage payments are not reportable payments however, and are not subject to backup withholding under section 3406. These regulations do not apply to reportable payments under section 3406. Because the owner of a disregarded entity other than a QSub is required to file and furnish information returns with respect to non-wage reportable payments and that requirement is not affected by these regulations, the disregarded entity is not subject to the backup withholding requirements. Rather, the owner of the disregarded entity is responsible for any backup withholding that is required with respect to reportable payments considered made by the owner. Under section 1361(b)(3)(E) disregarded entities that are QSubs are subject to information reporting requirements on non-wage payments, unless the Secretary provides otherwise. These regulations do not address the information reporting for QSubs.

The IRS notice and announcement cited in this preamble are published in the Internal Revenue Bulletin or Cumulative Bulletin and are available at http://www.irs.gov .

The employment tax provisions of these regulations apply to wages paid on or after January 1, 2009. The notice of proposed rulemaking provided that these regulations would become effective with respect to wages paid on January 1 following the year of publication of these final regulations in the Federal Register , which would have been January 1, 2008. However, in order to ensure that taxpayers have sufficient time to make any necessary changes to their systems in response to these regulations, the IRS and the Treasury Department have determined that it is appropriate to delay the effective date of these regulations until January 1, 2009.

The IRS and the Treasury Department believe that the considerations that support a January 1, 2009, effective date for the employment tax provisions do not apply to the excise tax provisions. Thus, the excise tax provisions of these regulations apply to liabilities imposed and actions required or permitted in periods beginning on or after January 1, 2008. For periods beginning before that date, the IRS will treat payments made by a disregarded entity, or other actions taken by a disregarded entity, with respect to the excise taxes affected by these regulations as having been made or taken by the sole owner of that entity. Thus, for such periods, the owner of a disregarded entity will be treated as satisfying the owner's obligations with respect to the excise taxes affected by these regulations, provided that those obligations are satisfied either (1) By the owner itself or (2) by the disregarded entity on behalf of the owner.

Disregarded entities, and the owners of such entities may continue to use the procedures permitted by Notice 99-6 for wages paid prior to January 1, 2009. Notice 99-6 provides that if the owner calculates and pays all employment taxes and satisfies all other employment tax obligations with respect to employees of the disregarded entity under the owner's name and taxpayer identification number (as permitted under method (1) of Notice 99-6) for a return period that begins on or after April 20, 1999, then the owner must continue to use this method unless and until otherwise permitted by the Commissioner. However, Notice 99-6 is modified such that a taxpayer may switch to method (2) of Notice 99-6 with respect to wages paid on or after August 16, 2007 and before January 1, 2009, without seeking permission of the Commissioner. Taxpayers who switch from method (1) to method (2) with respect to wages paid prior to January 1, 2009, may consider wages paid by the owner to employees of the disregarded entity during the calendar year of the switch as having been paid by the disregarded entity for purposes of determining whether wages paid to the disregarded entity's employees have reached the contribution and benefit base as determined under section 230 of the Social Security Act and for purposes of the wage base under section 3306. However, as provided in Notice 99-6, regardless of whether the owner uses method (1) or method (2), the owner is ultimately responsible for employment tax liabilities and other employment tax responsibilities with respect to all wages paid prior to January 1, 2009, to employees of the disregarded entity.

Notice 99-6 is obsoleted as of January 1, 2009.

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, the proposed regulations preceding these regulations were submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.

The principal authors of these regulations are Susan Athy, Office of Associate Chief Counsel (Passthroughs and Special Industries), and John Richards, Office of Associate Chief Counsel (Tax Exempt and Government Entities). However, other personnel from the IRS and the Treasury Department participated in their development.

The final and temporary regulations that are the subject of this correction are under section 4965 of the Internal Revenue Code.

As published, final and temporary regulations (TD 9334) contain errors that may prove to be misleading and are in need of clarification.

The Office of the Director of National Intelligence (ODNI) was created by the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. 108-458, 118 Stat. 3638. The ODNI began operations on April 22, 2005, the day after the first Director of National Intelligence took office. Because the majority of documents held by the ODNI at its inception were previously maintained by the Central Intelligence Agency (CIA) and the ODNI did not have a FOIA staff upon stand-up, the CIA agreed to handle the administrative aspects of the ODNI's FOIA processing. Through this arrangement, the ODNI makes all legal decisions regarding the handling of FOIA requests for ODNI records and the CIA assists with the administrative tasks associated with processing FOIA requests, including the intake and tracking of requests, as well as drafting correspondence to requesters. We are currently working toward having our own FOIA office handle all aspects of ODNI's FOIA processing.

On June 4, 2007, the ODNI submitted a proposed regulation implementing the FOIA for public comment. The ODNI received two submissions with comments on the proposed regulation. The ODNI has reviewed and carefully considered all of the comments that were submitted and has made the following changes to the regulation:

(1) The definitions of educational institution and noncommercial scientific institution have been changed and are in accordance with the definition in the Office of Management and Budget's guidelines, 52 Fed. Reg. 10,012 (Mar. 27, 1987).

(2) We have changed the fee portion of the regulation so that a FOIA request will be considered a commitment to pay up to $25.00 unless the requester asks for a waiver of fees.

(3) The term “reasonably described record” has been removed from the definitional section of the regulation. A more detailed explanation of the type of information the ODNI needs in order to locate records responsive to a particular request has been added in a separate section.

(4) We have decided to accept FOIA requests electronically and have added the email address to the regulation. Although the FOIA does not require this, it is a growing trend within the federal government and we believe it will provide better customer service to our FOIA requesters.

(5) The expedited processing section and other sections have been clarified.

(6) Certain superfluous words in the definitional section and a paragraph regarding allocation of resources have been removed.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under both 5 U.S.C. 553(b)(A) and (b)(B), the Coast Guard finds this rule is exempt from notice and comment rulemaking requirements because these changes involve agency organization and practices, and good cause exists for not publishing an NPRM for all revisions in the rule because they are all non-substantive changes. This rule consists only of corrections and editorial, organizational, and conforming amendments. These changes will have no substantive effect on the public; therefore, it is unnecessary to publish an NPRM. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that, for the same reasons, good cause exists for making this rule effective less than 30 days after publication in the Federal Register .

Each year Title 33 of the Code of Federal Regulations is updated on July 1. This rule, which becomes effective August 16, 2007, makes technical and editorial corrections throughout Title 33. This rule does not create any substantive requirements.

This rule corrects the authority citations in parts 1, 64, 109, 117, 147, and 151. The explanations in §§ 109.05(a) and 109.10 concerning the authority to regulate anchorage grounds and special anchorage areas are also updated.

Five sections in part 100 pertaining to regattas and other marine events, and one paragraph, a table, and a figure in part 110 pertaining to the placement of mooring buoys are removed because they are obsolete or redundant. A note in part 151 that references a definition has been updated.

Additional amendments to parts 2, 64, 150, and 161 are:

33 CFR 2.32(c) . The Coast Guard previously revised definitions of jurisdictional terms in part 2, conforming them to statutory changes and Presidential proclamations affecting Coast Guard jurisdiction (68 FR 42595, July 18, 2003). Those amendments inadvertently omitted wreck and structure marking authority but were intended to incorporate the traditional interpretation of “high seas” that existed before the advent of the concept of an exclusive economic zone (EEZ). Prior to those amendments, the meaning of “high seas” within the context of Coast Guard wreck and structure marking authority, as applied to persons subject to U.S. jurisdiction, was intended to be similar to how the term “high seas” was understood in traditional maritime law enforcement authority, 14 U.S.C. 89(a), and as defined by Congress in the Intervention on the High Seas Act, 33 U.S.C. 1471, et seq. It was not our intent, in promulgating the 2003 updates to jurisdictional regulations, to change that application. Rather, our intent was to maintain, insofar as possible, the existing jurisdictional authorities of the Coast Guard to execute its missions, particularly with respect to the definition of “high seas” (see 68 FR 42595-6).

33 CFR 64.06. A definition of “high seas” is added to the section's list of definitions to make clear that the application of this part remains unchanged by our amendments to 33 CFR Part 2 in 2003 (68 FR 42595, July 18, 2003).

33 CFR Part 150. The geographic coordinates in § 150.940 have been revised to enable plotting using the North American Datum of 1983, and the description of the datum in § 150.930 has been amended accordingly.

33 CFR 161.35. The names, numbers, and locations of certain navigation aids in the Houston/Galveston Vessel Traffic Service Area have been updated in Tables 161.35(B) and (C).

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security. We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary. As this rule involves internal agency practices and procedures and non-substantive changes, it will not impose any costs on the public.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. This rule does not require a general NPRM and, therefore, is exempt from the requirements of the Regulatory Flexibility Act. Although this rule is exempt, we have reviewed it for potential economic impact on small entities.

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraphs (34)(a) and (b), of the Instruction from further environmental documentation because this rule involves editorial, procedural, and internal agency functions. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES .

States which have received final authorization from the EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask the EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to the EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273, and 279.

We conclude that Louisiana's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant Louisiana final authorization to operate its hazardous waste program with the changes described in the authorization application. Louisiana has responsibility for permitting treatment, storage, and disposal facilities within its borders (except in Indian Country) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that the EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, the EPA will implement those requirements and prohibitions in Louisiana including issuing permits, until the State is granted authorization to do so.

The effect of this decision is that a facility in Louisiana subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. Louisiana has enforcement responsibilities under its State hazardous waste program for violations of such program, but the EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:

• Do inspections, and require monitoring, tests, analyses, or reports;

• Enforce RCRA requirements and suspend or revoke permits and

• Take enforcement actions regardless of whether the State has taken its own actions.

This action does not impose additional requirements on the regulated community because the regulations for which Louisiana is being authorized by today's action are already effective under State law, and are not changed by today's action.

The EPA did not publish a proposal before today's rule because we view this as a routine program change and do not expect comments that oppose this approval. We are providing an opportunity for public comment now. In addition to this rule, in the proposed rules section of today's Federal Register we are publishing a separate document that proposes to authorize the State program changes.

If the EPA receives comments that oppose this authorization, we will withdraw this rule by publishing a document in the Federal Register before the rule becomes effective. The EPA will base any further decision on the authorization of the State program changes on the proposal mentioned in the previous paragraph. We will then address all public comments in a later final rule. You may not have another opportunity to comment. If you want to comment on this authorization, you must do so at this time. If we receive comments that oppose only the authorization of a particular change to the State hazardous waste program, we will withdraw only that part of this rule, but the authorization of the program changes that the comments do not oppose will become effective on the date specified above. The Federal Register withdrawal document will specify which part of the authorization will become effective, and which part is being withdrawn.

The State of Louisiana initially received final authorization on February 7, 1985 (50 FR 3348), to implement its base Hazardous Waste Management Program. We granted authorization for changes to their program on November 28, 1989 (54 FR 48889) effective January 29, 1990; August 26, 1991 (56 FR 41958) effective August 26, 1991; November 7, 1994 (59 FR 55368) effective January 23, 1995; December 23, 1994 (59 FR 66200) effective March 8, 1995; there were technical corrections made on January 23, 1995 (60 FR 4380), effective January 23, 1995; and another technical correction was made on April 11, 1995 (60 FR 18360) effective April 11, 1995; October 17, 1995 (60 FR 53704) effective January 2, 1996; March 28, 1996 (61 FR 13777) effective June 11, 1996; December 29, 1997 (62 FR 67572) effective March 16, 1998; October 23, 1998 (63 FR 56830) effective December 22, 1998; August 25, 1999 (64 FR 46302) effective October 25, 1999; September 2, 1999 (64 FR 48099) effective November 1, 1999; February 28, 2000 (65 FR 10411) effective April 28, 2000; January 2, 2001 (66 FR 23) effective March 5, 2001; December 9, 2003 (68 FR 68526) effective February 9, 2004, June 10, 2005 (70 FR 33852) effective August 9, 2005 and November 13, 2006 (71 FR 66116) effective January 13, 2007. On September 18, 2006, Louisiana applied for approval of its program revisions for RCRA Cluster XV. In this application, Louisiana is seeking approval of RCRA Cluster XV in accordance with 40 CFR 271.21(b)(3).

Since 1979, through the Environmental Affairs Act, Act 449 enabling the Office of Environmental Affairs within the Louisiana Department of Natural Resources, as well as, the Environmental Control Commission conducted an effective program designed to regulate those who generate, transport, treat, store, dispose or recycle hazardous waste. During the 1983 Regular Session of the Louisiana Legislature, Act 97 was adopted, which amended and reenacted La. R.S. 30:1051 et seq. as the Environmental Quality Act, renaming the Environmental Affairs Act (Act 1938 of 1979). This Act created Louisiana Department of Environmental Quality LDEQ), including provisions for new offices within this new Department of Environmental Quality. Act 97 also transferred the duties and responsibilities previously delegated to the Department of Natural Resources, Office of Environmental Affairs, to the new Department. The LDEQ has lead agency jurisdictional authority for administering the Resource Recovery and Conservation Act (RCRA) Subtitle C program in Louisiana. Also, the LDEQ is designated to facilitate communication between the EPA and the State. During the 1999 Regular Session of Louisiana Legislature, Act 303 revised the La. R.S. 30:2011 et seq. allowing LDEQ to reengineer the Department to perform more efficiently and to meet its strategic goals.

It is the intention of the State, through this application, to demonstrate its equivalence and consistency with the federal statutory tests, which are outlined in the United States Environmental Protection Agency regulatory requirements under 40 CFR 271, Subpart A, for final authorization. The submittal of this application is in keeping with the spirit and intent of RCRA, which provides equivalent States the opportunity to apply for final authorization to operate all aspects of their hazardous waste management programs in lieu of the Federal government. The Louisiana Environmental Quality Act authorizes the State's program, Subtitle II of Title 30 of the Louisiana Revised Statutes. With this application Louisiana is applying for authorization for specific areas of the State regulations identified as requiring authorization and the listed Checklists 206 and 207 will allow the State to implement the equivalent RCRA Subtitle C portion of the program.

On February 3, 2006, Louisiana submitted a final complete program revision application, seeking authorization of their changes in accordance with 40 CFR 271.21. We now make an immediate final decision, subject to receipt of written comments that oppose this action, that Louisiana's hazardous waste program revision satisfies all of the requirements necessary to qualify for Final authorization. Therefore, we grant the State of Louisiana Final authorization for the following changes: The State of Louisiana's program revisions consist of regulations which specifically govern RCRA Cluster XV as documented below:

The State's hazardous regulations for Checklists 206 and 207 are consistent, equivalent and no less stringent than the Federal regulations. There are no provisions that are more stringent or broader in scope. Broader in scope requirements are not part of the authorized program and EPA can not enforce them.

Louisiana will issue permits for all the provisions for which it is authorized and will administer the permits it issues. The EPA will continue to administer any RCRA hazardous waste permits or portions of permits which we issued prior to the effective date of this authorization. We will not issue any more new permits or new portions of permits for the provisions listed in the Table in this document after the effective date of this authorization. The EPA will continue to implement and issue permits for HSWA requirements for which Louisiana is not yet authorized.

Louisiana is not authorized to carry out its Hazardous Waste Program in Indian Country within the State. This authority remains with EPA. Therefore, this action has no effect in Indian Country.

Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the CFR. We do this by referencing the authorized State rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272, subpart T for this authorization of Louisiana's program changes until a later date. In this authorization application the EPA is not codifying the rules documented in this Federal Register notice.

The Office of Management and Budget (OMB) has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. This action authorizes State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this action authorizes preexisting requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). For the same reason, this action also does not significantly or uniquely affect the communities of Tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.

Under RCRA 3006(b), the EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for the EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, the EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the Executive Order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this document and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This action will be effective October 15, 2007.

Adopted: August 2, 2007.

Released: August 6, 2007.

By the Commission: Commissioner Copps approving in part, concurring in part and issuing a statement; Commissioner Adelstein concurring and issuing a statement.

1. In this Report and Order and Further Notice of Proposed Rulemaking, we conclude a proceeding to collect $290,295,160 in regulatory fees for Fiscal Year (“FY”) 2007, pursuant to section 9 of the Communications Act of 1934, as amended (the “Act”). Section 9 regulatory fees are mandated by Congress and are collected to recover the regulatory costs associated with the Commission's enforcement, policy and rulemaking, user information, and international activities. 1 The Further Notice of Proposed Rulemaking (“FNPRM”) seeks comment on the appropriate fee structure for Broadband Radio Service (“BRS”).

2. We retain the established methods, policies, and procedures for collecting section 9 regulatory fees adopted by the Commission in prior years. We have found that the assessment methodology adopted in prior regulatory fee cycles has provided a satisfactory means for collecting the Commission's annual appropriations. In addition to the assessment methodology, we retain and enhance our administrative measures used for notification and assessment of regulatory fees as in previous years, such as generating bills and pre-completed assessment notifications for certain regulatees. Beginning this year, we expand our billing efforts to include licensees of earth stations and cable television relay service (“CARS”) stations. We will also apply regulatory fee obligations to interconnected Voice over Internet Protocol (“VoIP”) providers. Finally, we wish to take this opportunity to strongly encourage regulatees to electronically file their FY 2007 regulatory fee payments via Fee Filer.

3. The Commission is obligated to collect $290,295,160 in regulatory fees during FY 2007 to fund the Commission's operations. Consistent with our established practice, we intend to collect these regulatory fees during a filing window in September 2007 in order to collect the required amount by the end of our fiscal year.

4. On April 18, 2007, we released a Notice of Proposed Rulemaking seeking comment on regulatory fee issues. 2 As noted in the FY 2007 NPRM , the section 9 regulatory fee proceeding is an annual rulemaking process intended to ensure the Commission collects the fee amount required by Congress each year. In the FY 2007 NPRM , we proposed to largely retain the section 9 regulatory fee methodology used in the prior fiscal year. We received ten comments and six reply comments. 3 We address the issues raised in our FY 2007 NPRM below.

5. In our FY 2007 regulatory fee assessment, we use essentially the same section 9 regulatory fee assessment methodology adopted for FY 2006. Each fiscal year, the Commission proportionally allocates the total amount that must be collected via section 9 regulatory fees. The results of our FY 2007 regulatory fee assessment methodology (including a comparison to the prior year's results) are contained in Attachment C. For FY 2007, we will use the FY 2006 congressionally mandated amount as the basis for calculating the unit fees for each fee category. To collect the $290,295,160 required by law, we adjust the FY 2006 amount downward by approximately 2.84 percent. 4 Consistent with past practice, we then divide the FY 2007 amount by the number of payment units in each fee category to determine the unit fee. 5 As in prior years, for cases involving small fees ( e.g. , licenses that are renewed over a multiyear term), we divide the resulting unit fee by the term of the license, and then round these unit fees consistent with the requirements of section 9(b)(2).

6. In calculating the FY 2007 regulatory fees listed in Attachment D, we further adjusted the FY 2006 list of payment units (Attachment B) based upon licensee databases and industry and trade group projections. Whenever possible, we verified these estimates from multiple sources to ensure the accuracy of these estimates. In some instances, Commission licensee databases were used, while in other instances, actual prior year payment records and/or industry and trade association projections were used in determining the payment unit counts. 6 Where appropriate, we adjusted and rounded our final estimates to take into consideration events that may impact the number of units for which regulatees submit payment, such as waivers and exemptions that may be filed in FY 2007, and fluctuations in the number of licensees or station operators due to economic, technical, or other reasons. Therefore, when we state that our estimated FY 2007 payment units are based on FY 2006 actual payment units, the number may have been rounded or adjusted slightly to account for these variables.

7. We consider additional factors in determining regulatory fees for AM and FM radio stations. These factors are facility attributes and the population served by the radio station. The calculation of the population served is determined by coupling current U.S. Census Bureau data with technical and engineering data, as detailed in Attachment E. Consequently, the population served, as well as the class and type of service (AM or FM), determines the regulatory fee amount to be paid. 7

8. In the FY 2007 NPRM , we proposed to continue our policy of maintaining the CMRS Messaging Service regulatory fee at the rate that was established in FY 2002 ( i.e. , $0.08 per subscriber), noting that the subscriber base in this industry has declined 79 percent from 40.8 million to 8.3 million from FY 1997 to FY 2006. 8 The only commenters addressing this issue, AAPC and USA Mobility, state that maintaining the fee amount at $0.08 per subscriber is the minimum action to take and that the Commission should consider reducing the fee amount. 9

9. We continue to believe that maintaining the CMRS Messaging regulatory fee at the rate established in FY 2002, rather than allowing it to increase, is the appropriate level of relief to be afforded to the messaging industry. We are cognizant of the financial hardship that could be caused by increasing the fee (shrinking profit margins, additional loss of subscribers, reduced revenue, etc .) for this service category. Therefore, we adopt our proposal to maintain the CMRS Messaging Service regulatory fee for FY 2007 at $0.08 per subscriber.

10. In our FY 2006 NPRM , 10 we noted that VSNL Telecommunications (US) Inc. (“VSNL”) had filed a Petition for Rulemaking urging the Commission to revise its regulatory fee methodology for bearer circuits;  11 and that we issued a Public Notice designating the proceeding as RM-11312 and requesting comment on the Petition. 12 We stated in our FY 2006 Report and Order that the issues presented in the Petition warrant consideration separately from the Commission's annual regulatory fee proceeding. 13 In our FY 2007 NPRM , we received a set of joint comments filed by seven submarine cable landing licensees urging the Commission to take similar action. 14 We reiterate that the issues presented in the Petition warrant consideration separately from the Commission's annual regulatory fee proceeding. 15

11. In the FY 2007 NPRM , we observed that providers of interconnected VoIP  16 services are now required to contribute to the Universal Service Fund (“USF”)  17 and we tentatively concluded that the interconnected VoIP providers should also pay regulatory fees. 18 Our tentative conclusion was based on the mandate in section 9 of the Act that the Commission “assess and collect regulatory fees to recover the costs” of regulatory activities  19 as well as our analysis in the 2006 Interim Contribution Methodology Order . In this Report and Order we adopt our tentative conclusion in the FY 2007 NPRM and require interconnected VoIP providers to pay FY 2007 regulatory fees based on revenues reported on the FCC Form 499-A at the same rate as interstate telecommunications service providers (“ITSPs”). 20

12. By way of recent background, in the 2006 Interim Contribution Methodology Order , the Commission, among other things, established universal service contribution obligations for providers of interconnected VoIP service based on its permissive authority under section 254(d) of the Act and its ancillary jurisdiction under Title I of the Act. 21 The Commission noted that significant growth in the number of VoIP subscribers in recent years is expected to continue. 22 In addition, the Commission observed that the USF revenue base had been diminishing and the contribution factor used to determine contributor payments into the fund has risen considerably as a result. 23 Interconnected VoIP service is increasingly used to replace traditional telephone service and, as the interconnected VoIP service industry continues to grow and to attract customers who previously relied on traditional voice service, it was inappropriate to exclude interconnected VoIP service from universal service contribution requirements. 24 In its Vonage decision, the DC Circuit upheld the Commission's decision to impose USF fees on interconnected VoIP providers. 25 Prior to the 2006 Interim Contribution Methodology Order , the Commission asserted its ancillary jurisdiction under Title I of the Act to require providers of interconnected VoIP services to supply 911 emergency calling capabilities to their customers. 26 More recently, the Commission also extended the section 222 customer proprietary network information (“CPNI”) obligations, disability access obligations, and telecommunications relay services (“TRS”) requirements to providers of interconnected VoIP services using its Title I authority. 27

13. Consistent with our previous orders, we conclude that Title I of the Act gives us direct authority to impose regulatory fees on providers of interconnected VoIP services. In particular, we have previously found, based on sections 1 and 2(a) of the Act, coupled with the definitions set forth in section 3(33) (“radio communication”) and section 3(52) (“wire communication”), that interconnected VoIP services are covered by the Commission's general jurisdictional grant. 28 Section 1 of the Act states that the Commission is created “[f]or the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States * * * a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges,” and that the agency “shall execute and enforce the provisions of th[e] Act.”  29 Section 2(a), in turn, confers on the Commission regulatory authority over all interstate communication by wire or radio. 30 As we have previously observed, interconnected VoIP services are covered by the statutory definitions of “wire communication” and/or “radio communication” because they involve “transmission of [voice] by aid of wire, cable, or other like connection * * *” and/or “transmission by radio * * *” of voice. 31 Therefore, these services come within the scope of the Commission's subject matter jurisdiction under section 2(a) of the Act. Accordingly, section 9 of the Act gives the Commission direct authority to impose regulatory fees on interconnected VoIP providers. Specifically, section 9 states that the Commission “shall assess and collect regulatory fees to recover the costs of the following regulatory activities of the Commission: Enforcement activities, policy and rulemaking activities, user information services, and international activities.”  32 In light of the many and increasing resources the Commission now dedicates to VoIP, the Commission should recover costs from interconnected VoIP providers. 33

14. We disagree with the VON Coalition's argument that we do not have jurisdiction to extend regulatory fees to interconnected VoIP providers because regulatory fees can only be assessed on entities subject to licensing or certification requirements. 34 On the contrary, section 9 gives the Commission broad authority to impose regulatory fees. Section 9 does not limit the regulatory fee requirement to licensees. Moreover, the Commission has not, in the annual regulatory fee orders or otherwise, specifically limited the implementation of section 9 to “licensees.” To construe section 9 as narrowly as the VON Coalition proposes would prohibit the Commission from recovering costs from providers that impose costs on the Commission, simply because they were not licensees and would unreasonably lighten regulatory costs on certain industry segments at the cost of others.

15. Having concluded that the Commission has authority to assess regulatory fees on interconnected VoIP providers, we must determine how to assess those fees. Specifically, we must determine whether to base fees on revenues or subscribers, or some other basis, and at what rate. We conclude that interconnected VoIP providers should pay regulatory fees based on their interstate and international revenue at the same rate as ITSPs.

16. In the FY 2007 NPRM , we sought comment on whether interconnected VoIP providers should be assessed regulatory fees based on revenues, which would be consistent with the regulatory fee methodology used for interstate telecommunications service providers, or if we should use a numbers-based approach, which would be consistent with the methodology used for CMRS. 35 Most commenters addressing this issue favor a numbers-based or subscriber-based approach, as opposed to a revenue-based approach. 36 We instead adopt a revenue-based approach as adopted in the 2006 Interim Contribution Methodology Order for USF contributions. The Commission's conclusion that interconnected VoIP service is more closely analogous to wireline toll service than to CMRS guides us here. 37 As a result, we will use revenue as the basis for imposing regulatory fees on interconnected VoIP providers instead of a subscriber-based approach, which is the basis for wireless providers. 38

17. Commenters contend that broadband providers often offer a bundle of services to consumers and it may be difficult to separate the telecommunications service revenues from the other revenues. 39 Consistent with our decision in the 2006 Interim Contribution Methodology Order , however, interconnected VoIP providers may avoid separating revenue types by using a safe-harbor level of 64.9 percent interstate or international revenues for purposes of calculating regulatory fee obligations. 40 Interconnected VoIP providers may contribute based on a lesser percentage if they provide supporting traffic studies. 41

18. We also conclude that interconnected VoIP providers will pay regulatory fees on their interstate and international revenues at the same rate as ITSPs. As we stated in the 2006 Interim Contribution Methodology Order , interconnected VoIP providers offer a service that is almost indistinguishable, from the consumers' point of view, from the service offered by interstate telecommunications service providers. 42 Further, the explosive growth of the VoIP industry in recent years has resulted in recent Commission actions addressing the service. 43 The growth of the VoIP industry and the extent to which VoIP service is used as a substitute for analog voice service have necessitated a number of Commission rulemaking proceedings pertaining to interconnected VoIP services.

19. We recognize that the costs and benefits associated with our regulation of interconnected VoIP providers are not identical as those associated with regulating interstate telecommunications service and CMRS. 44 For example, at this time interconnected VoIP providers are not subject to the Commission's enforcement authority in most instances and only recently have the Commission's rulemaking activities involved interconnected VoIP providers. 45 The Commission does not maintain a database system pertaining to interconnected VoIP providers similar to the registration and filing systems for CMRS and wireline carriers. 46 In addition, interconnected VoIP providers do not receive certain benefits, such as universal service support payments and interconnection rights, as Title II carriers do. 47 Section 9 is clear, however, that regulatory fee assessments are based on the burden imposed on the Commission, not benefits realized by regulatees. 48 Interconnected VoIP providers create costs at the Commission by participating in rulemaking proceedings, waiver petitions, and other matters in the wake of our assertion of ancillary jurisdiction under Title I of the Act to require providers of interconnected VoIP services to contribute to the universal service fund, supply 911 emergency calling capabilities to their customers, comply with section 222 CPNI obligations, and comply with our disability access and TRS requirements. 49 The provision of interconnected VoIP service is a growing industry  50 and we can reasonably assume that this regulatory burden on the Commission will continue to increase. 51 Thus, this category of service providers should share in the costs of the Commission's regulatory activities in the same manner as ITSPs. Section 9 does not require the Commission to engage in a company-by-company assessment of relative regulatory costs. In any given year, companies grouped in the ITSP category, or other regulatory fee categories, might be the subject of more regulation than others, e.g. , merger proceedings. As a result, our responsibility here is to identify the category of regulatory fee payees with which interconnected VoIP providers most closely relate. On this note, we also observe that interconnected VoIP providers are able to offer their services because they interconnect with the PSTN, and they thereby benefit from our substantial regulation of telecommunications service providers. 52

20. Because we are adding interconnected VoIP services to our regulatory fee assessments, we conclude that this is a permitted amendment under section 9(b)(3) of the Act. Section 9(b)(4)(B) of the Act in turn requires us to notify Congress 90 days before the change may take effect. We will provide Congress notification upon publication of this order, and will release a public notice once the amendment takes effect, if there is no Congressional objection.

21. EWA argues that the fee for Private Land Mobile Radio Service (“PLMRS”) exclusive use licenses has increased from $5 per year in 2001 to $20 per year in 2006, and for PLMRS shared use licenses, the fee has increased from $5 to $10 during the same time period. 53 EWA further contends that this increase in fee rates is not associated with a corresponding increase in the cost of regulating the PLMRS industry, and as a result, the Commission's FY 2007 proposed Part 90 PLMRS regulatory fee of $35 (PLMRS Exclusive Use) and $15 (PLMRS Shared Use) is unjustified.

22. We disagree. In our FY 2004 Report and Order , the Commission stated that regulatory fees need not be precisely calibrated on a service-by-service basis to the actual costs of the Commission's regulatory activities for that service. 54 The Commission stated that, “the initial Schedule of Regulatory Fees that Congress enacted in section 9(g) reflects a `costs adjusted for benefits' approach permitted under section 9.”  55 Procedurally, the Commission calculates regulatory fees by proportionally allocating the total amount that must be collected in section 9 regulatory fees (known as “Expected Revenue”), and dividing this allocated amount by the estimated number of units in its respective fee category. In the case of PLMRS (Shared Use and Exclusive Use), the resulting figure is also divided by 10, the length of the term of a PLMRS license. Because PLMRS licenses have a ten-year term, and regulatory fees are not collected again from these licenses until after 10 years have passed, it is possible that in any given year, there may be fewer units that are either renewing their PLMRS licenses or applying for new ones. For example, between FY 2001 and FY 2006, the unit estimates for PLMRS Exclusive Use decreased from 5,500 units (FY 2001) to 2,200 units (FY 2006), a 60 percent reduction, while PLMRS Shared Use unit estimates decreased from 58,000 units (FY 2001) to 25,000 units (FY 2006), a 57 percent reduction. 56 At the same time that PLMRS (Shared Use and Exclusive Use) unit estimates were decreasing by nearly 60 percent, our congressionally mandated regulatory fees collections amount increased from $200.1 million (FY 2001) to $298.8 million (FY 2006), an increase of 49 percent. The combination of an increasing collections amount mandated by Congress combined with a decrease in the number of units resulted in a higher unit fee between FY 2001 and FY 2006 for PLMRS Shared Use and PLMRS Exclusive Use fee categories.

23. We also note that the unit fee increase has been gradual over time. For example, between FY 2001 and FY 2006, the PLMRS Shared Use unit fee remained steady at $5 per year between FY 2001 and FY 2005, and increased only to $10 per year beginning in FY 2006. During the same time period, the PLMRS Exclusive Use unit fee remained at $5 per year in FY 2001 and FY 2002, increased to the level of $10 per year in FY 2003, FY 2004, and FY 2005, and then increased to $20 per year in FY 2006. Because these fee increases are based primarily on a declining unit base and an increasing congressional mandate to collect more annual regulatory fees, common factors that contribute to unit fee changes each year, we decline to modify or reduce the PLMRS (Shared Use and Exclusive Use) unit fee as EWA suggests.

24. In our FY 2007 NPRM, we sought comment on the administrative and operational processes used to collect the annual section 9 regulatory fees. Although these issues do not affect the amount of regulatory fees parties are obligated to submit, the administrative and operational issues affect the process of submitting payment.

25. We did not seek specific comment on the use of our online Fee Filer application in the FY 2007 NPRM. We take this opportunity, however, to strongly encourage regulatees to electronically file their FY 2007 regulatory fee payments via Fee Filer, 57 rather than submitting payment with a completed hardcopy Form 159, Form 159-B, and/or Form 159-W. The benefits of electronically filing via Fee Filer are expeditious payment submissions that are less expensive (no U.S. postage if paying online) and less prone to error. It also results in improved record keeping and payment reconciliation efforts, and reduces paperwork burdens on payers and Commission staff alike.

26. Traditionally, we have received hardcopy Form 159-Cs (Continuation Sheets) from our regulatees needing to make voluminous payment transactions. Our “voluminous payers” will benefit even more so by using Fee Filer. Having expanded our pre-billing initiatives in FY 2007, some regulatees will receive more than one Form 159-B; and some will be obligated to pay for fees that were pre-billed and other fees that were not pre-billed. Fee Filer relieves regulatees of the need to mail several different pre-bills or to follow different filing instructions for different fees; and enables all fee obligations to be paid simply either online or by following pre-printed instructions on a Fee Filer-produced voucher.

27. We note that Fee Filer accepts electronic credit card transactions of up to $99,999.99 and ACH payment transactions from a bank account of an unlimited dollar amount. Fee Filer also facilitates payment by check or wire transfer by producing a one-page Remittance Voucher Form 159-E which can be mailed to our lockbox bank.

28. In our FY 2007 NPRM, we sought comment on the administrative processes that the Commission uses to notify regulatees and collect regulatory fees. We received no comment on these general processes. Each year, we generate public notices and fact sheets that notify regulatees of the fee payment due date and provide additional information regarding regulatory fee payment procedures. Consistent with our established practice, we will provide public notices, fact sheets and all other relevant material on our Web site at http://www.fcc.gov/fees/regfees.html for the FY 2007 regulatory fee cycle. As a general practice, we will not send regulatory fee material to regulatees via surface mail. However, in the event that regulatees do not have access to the Internet, we will mail public notices and other relevant material upon request. Regulatees and the general public may request such information by contacting the FCC Financial Operations HelpDesk at (877) 480-3201, Option 4.

29. As discussed above, we do not send public notices and fact sheets to regulatees en masse. However, we will continue to send specific regulatory fee pre-bills or assessment notifications via surface mail to the select fee categories discussed below. 58 Pre-bills are hardcopy billing statements that the Commission mails to certain regulatees. In prior years, the Commission only sent pre-bills to ITSPs and satellite space station licensees. The remaining regulatees did not receive pre-bills.

30. In our FY 2007 NPRM, we sought comment on expanding our section 9 regulatory fee pre-billing initiatives to include our service categories for earth stations and CARS stations, beginning in FY 2007. We stated that we could accomplish pre-billing for these categories because they are comprised of relatively few payment units (relative to many other categories in our Schedule of Regulatory Fees), and because we maintain licensing databases for both categories. 59 The ACA supports our proposal to pre-bill earth stations and CARS stations, noting that it can promote timely filings and payments, and further reduce administrative burdens and costs for small cable operators. 60 We received no comments regarding our proposal. Effective this fiscal year, we will pre-bill our earth station and CARS station service categories.

31. In FY 2001, we began mailing pre-completed FCC Form 159-W assessments to carriers in an effort to assist them in paying their ITSP regulatory fee. The fee amount on FCC Form 159-W was calculated from the FCC Form 499-A worksheet. Beginning in FY 2004, we converted our usage of the FCC Form 159-W from an “assessment of amount due” to a pre-bill. We have successfully used the Form 159-W as a pre-billing instrument in the fiscal years following, and we proposed to continue our ITSP pre-billing initiative in FY 2007 in our FY 2007 NPRM. We received no comment on this proposal, and will continue to mail pre-bills ITSPs in FY 2007.

32. This fiscal year, we will round lines 14 (total subject revenues) and 16 (total regulatory fee owed) on FCC Form 159-W to the nearest dollar. Line 14 must be rounded to a whole dollar amount because this data field is linked to the FCC Form 159 Remittance Advice Block 25A (quantity), which can only accept whole numbers. It logically follows that if line 14 must be rounded, then the form's final line that calculates the total fee owed (line 16) should be rounded to the nearest dollar as well. Also, rounding lines 14 and 16 will nominally ease the filing and payment burdens of our Form 159-W filers. We received no comment on this administrative change as proposed in our FY 2007 NPRM, and will therefore implement the change for FY 2007.

33. Beginning in FY 2004, we mailed regulatory fee pre-bills via surface mail to licensees in our two satellite space station service categories. Specifically, geostationary orbit space station (“GSO”) licensees received bills requesting regulatory fee payment for satellites that (1) were licensed by the Commission and operational on or before October 1 of the respective fiscal year; and (2) were not co-located with and technically identical to another operational satellite on that date ( i.e. , were not functioning as a spare satellite). Non-geostationary orbit space station (“NGSO”) licensees received pre-bills requesting regulatory fee payment for systems that were licensed by the Commission and operational on or before October 1 of the respective fiscal year.

34. For FY 2007, we proposed to continue mailing pre-bills for our GSO and NGSO satellite space station categories. 61 We received no comment on this matter, and will continue to mail pre-bills to our GSO and NGSO satellite space station categories.

35. Beginning in FY 2003, we sent fee assessment notifications via surface mail to media services entities on a per-facility basis. The notifications provided the assessed fee amount for the facility in question, as well as the data attributes that determined the fee amount. We have since refined this initiative with improved results. 62 In our FY 2007 NPRM , we proposed to continue our assessment initiative for media services licensees this year. 63 We received no comment on the proposal.

36. Consistent with procedures used last year, we will mail assessment notifications to licensees to their primary record of contact populated in CDBS (Consolidated Database System) and to their secondary record of contact, if available. We will continue to make the Commission-authorized web site available to licensees to update or correct any information concerning their facilities and to amend their fee-exempt status, if need be. 64 Licensees opting not to file their fee payment electronically through Fee Filer must submit a completed hardcopy FCC Form 159 with their fee payment; i.e. , the assessment notifications cannot be used as a substitute for a completed Form 159.

37. As we have done in prior years, we will send assessment letters to CMRS providers using Numbering Resource Utilization Forecast (“NRUF”) data that is based on “assigned” number counts that have been adjusted for porting to net Type 0 ports (“in” and “out”). 65 The letters will not include Operating Company Numbers (“OCNs”) with their respective assigned number counts, but rather, OCNs with an aggregate total of assigned numbers for each carrier. As in prior years, carriers will be given an opportunity to amend their subscriber counts listed on the assessment letter.

38. If the number of subscribers on the assessment letter differs from the subscriber count the service provider provided on its NRUF form, the provider may correct its subscriber count by returning the assessment letter or by contacting the Commission and stating a reason for the change, such as the purchase or the sale of a subsidiary, including the date of the transaction, and any other information that will help to justify a reason for the change.

39. If we receive no response or correction to our initial assessment letter, we will expect the provider's section 9 fee payment to be based on the number of subscribers listed on that letter. We will review all amendments to assessment letters and determine whether a change in the number of subscribers is warranted. We will then generate and mail a final assessment letter. The final assessment letter will inform carriers as to whether or not we accept the amended subscriber count.

40. Although an initial and a final assessment letter will be mailed to CMRS providers that have filed an NRUF form, some providers may not be sent assessment letters if they did not file the NRUF form. These providers shall compute their section 9 fee payment using the standard methodology  66 that is currently in place for CMRS Wireless services (e.g., compute their subscriber counts as of December 31, 2006), and submit their payment accordingly, either via Fee Filer, or attached to a completed hardcopy FCC Form 159. However, regardless of whether a provider receives an assessment letter or calculates its subscriber count independently, the Commission may audit the number of subscribers for which section 9 fees are paid. In the event that the Commission determines that the number of subscribers is inaccurate or that an insufficient reason is given for making a correction on the initial assessment letter, the Commission will assess the carrier for the difference between what was paid and what should have been paid.

41. Aggregate Subscriber Levels. Also in our FY 2007 NPRM, we noted that last year we eliminated the requirement for CMRS providers to identify their individual call signs when making their section 9 fee payment. This simplified the payment process for all CMRS providers by enabling them to pay their section 9 fees at the aggregate level. 67 In our FY 2007 NPRM, we proposed to continue this practice and we received no comment. We shall therefore continue to allow CMRS providers to pay their section 9 fees at the aggregate subscriber level.

42. Consolidated CMRS Section 9 Fee Categories. Finally, in our FY 2007 NPRM, we proposed to consolidate the CMRS cellular and CMRS mobile fee categories into one CMRS fee category. This action would eliminate the need for CMRS providers to separate their subscriber counts into CMRS cellular and CMRS mobile fee categories during the fee payment process. At one time, the Commission perceived a need to monitor the CMRS cellular and CMRS mobile fee categories separately. 68 However, we deem this no longer necessary and therefore proposed to reduce administrative burdens on CMRS providers by consolidating the two categories into one. We received no specific comment on this proposal. We will therefore consolidate our CMRS mobile category (which would have been payment type code 0712 in FY 2007) into the CMRS cellular category (payment type code 0711 in FY 2007). On a going forward basis, all CMRS cellular and mobile providers shall make their section 9 fee payments using the Commission's payment type code _11. This procedural change does not affect CMRS Messaging (Paging) providers, who will continue to make their section 9 fee payment using fee code 0713 in FY 2007 and _13 in the outyears.

43. In our FY 2007 NRPM, we proposed to continue to permit cable television operators to base their regulatory fee payment on their company's aggregate year-end subscriber count, rather than requiring them to sub-report subscriber counts on a per community unit identifier (CUID) basis. 69 This practice has worked well for the Commission the past three fiscal years and has eased administrative burdens for the cable television industry. One commenter supports this proposal. 70 We received no opposing comments, and will thereby continue to employ this payment procedure this fiscal year.

44. We also proposed to send an e-mail reminder to addresses populated in the Media Bureau's Cable Operations and Licensing System (“COALS”), as we did last year, to notify recipients of the FY 2007 regulatory fee payment due date and the fee amount for basic cable television subscribers. Cable television operators are required to file their cable-related forms at the Commission via the COALS Web site. To date, more than 98 percent of all cable operators have their email addresses recorded in the database. One commenter supports this proposal. 71 We received no opposing comments, and will therefore send an e-mail reminder to cable operators again this fiscal year.

45. Sending reminders via e-mail has proven to be an effective practice and we therefore proposed to discontinue our other practice of sending fee assessment letters via surface mail to cable television operators who are on file as having paid regulatory fees the previous fiscal year. One commenter asks the Commission to continue sending fee assessment letters via surface mail to cable operators that serve fewer than 5,000 subscribers, stating that these operators rely exclusively on the U.S. postal service for their day-to-day operations. 72 We decline the commenter's request. After conducting this assessment initiative for three years, we have concluded that it is inadequate for accurate assessment purposes and we will instead direct the Commission's resources towards more useful fee collection activities. In addition, we note that we make available all relevant regulatory fee material on our Web site. If regulatees cannot access the Internet to obtain the necessary information for paying their regulatory fees, they may request such information to be sent via surface mail by contacting the FCC Financial Operations HelpDesk at (877) 480-3201, Option 4.

46. Consistent with past practice, regulatees whose total FY 2007 regulatory fee liability, including all categories of fees for which payment is due, amounts to less than $10 will be exempted from payment of FY 2007 regulatory fees.

47. The Commission will, for the convenience of payers, accept fee payments made in advance of the window for the payment of regulatory fees. Licensees are reminded that, under our current rules, the responsibility for payment of fees by service category is as follows:

(a) Media Services: Regulatory fees must be paid for initial construction permits that were granted on or before October 1, 2006 for AM/FM radio stations, VHF/UHF television stations and satellite television stations. Regulatory fees must be paid for all broadcast facility licenses granted on or before October 1, 2006. In instances where a permit or license is transferred or assigned after October 1, 2006, responsibility for payment rests with the holder of the permit or license as of the fee due date.

(b) Wireline (Common Carrier) Services: Regulatory fees must be paid for authorizations that were granted on or before October 1, 2006. In instances where a permit or license is transferred or assigned after October 1, 2006, responsibility for payment rests with the holder of the permit or license as of the fee due date.

(c) Wireless Services: CMRS cellular, mobile, and messaging services (fees based upon a subscriber, unit or circuit count): Regulatory fees must be paid for authorizations that were granted on or before October 1, 2006. The number of subscribers, units or circuits on December 31, 2006 will be used as the basis from which to calculate the fee payment.

The first eleven regulatory fee categories in our Schedule of Regulatory Fees (see Attachment D) pay what we refer to as “small multi-year wireless regulatory fees.” Entities pay these regulatory fees in advance for the entire amount of their 5-year or 10-year term of initial license, and only pay regulatory fees again for the license at the time its next renewal. So while we include these eleven categories in our Schedule of Regulatory Fees to publicize the fee amounts, we do not actually collect these fees on an annual basis.

(d) Multichannel Video Programming Distributor Services (cable television operators and CARS licensees): Regulatory fees must be paid for the number of basic cable television subscribers as of December 31, 2006. 73 Regulatory fees also must be paid for CARS licenses that were granted on or before October 1, 2006. In instances where a CARS license is transferred or assigned after October 1, 2006, responsibility for payment rests with the holder of the license as of the fee due date.

(e) International Services: Regulatory fees must be paid for earth stations, geostationary orbit space stations and non-geostationary orbit satellite systems that were licensed and operational on or before October 1, 2006. In instances where a license is transferred or assigned after October 1, 2006, responsibility for payment rests with the holder of the license as of the fee due date. Regulatory fees must be paid for international bearer circuits, the payments of which are determined by the number of active circuits as of December 31, 2006. 74

48. As a reminder to all licensees, section 159(c) of the Act requires us to impose an additional charge as a penalty for late payment of any regulatory fee. As in years past, a late payment penalty of 25 percent of the amount of the required regulatory fee will be assessed on the first day following the deadline date for filing of these fees. Regulatory fee payment must be received and stamped at the lockbox bank by the last day of the regulatory fee filing window, and not merely postmarked by the last day of the window. Failure to pay regulatory fees and/or any late penalty will subject regulatees to sanctions, including the Commission's Red Light Rule ( see 47 CFR 1.1910) and the provisions set forth in the Debt Collection Improvement Act of 1996 (“DCIA”). We also assess administrative processing charges on delinquent debts to recover additional costs incurred in processing and handling the related debt pursuant to the DCIA and 47 CFR 1.1940(d) of the Commission's rules. These administrative processing charges will be assessed on any delinquent regulatory fee, in addition to the 25 percent late charge penalty. In case of partial payments (underpayments) of regulatory fees, the licensee will be given credit for the amount paid, but if it is later determined that the fee paid is incorrect or not timely paid, then the 25 percent late charge penalty (and other charges and/or sanctions, as appropriate) will be assessed on the portion that is not paid in a timely manner.

49. Furthermore, our regulatory fee rules provide that we will withhold action on any applications or other requests for benefits filed by anyone who is delinquent in any non-tax debts owed to the Commission (including regulatory fees) and will ultimately dismiss those applications or other requests if payment of the delinquent debt or other satisfactory arrangement for payment is not made. See 47 CFR 1.1161(c), 1.1164(f)(5), and 1.1910. Failure to pay regulatory fees can also result in the initiation of a proceeding to revoke any and all authorizations held by the entity responsible for paying the delinquent fee(s).

50. This Report and Order contains modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under Section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the new or modified information collection requirements contained in this proceeding. In addition, we note that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we previously sought specific comment on how the Commission might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

51. The Commission will send a copy of this Report and Order and Further Notice of Proposed Rulemaking in a report to be sent to Congress and the General Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

52. Accordingly, it is ordered pursuant to sections 4(i) and (j), 9, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 159, and 303(r) that the FY 2007 section 9 regulatory fee assessment requirements are adopted as specified herein.

53. It is further ordered that Part 1 of the Commission's Rules are amended as set forth in Attachment H, and the these Rules shall become effective 30 days after publication in the Federal Register , except that changes to the Schedule of Regulatory Fees made pursuant to section 9(b)(3) of the Communications Act, and incorporating regulatory fee payment obligations for interconnected VoIP service providers, shall become effective 90 days after notification to Congress.

54. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order and Further Notice of Proposed Rulemaking, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the U.S. Small Business Administration.

55. As required by the Regulatory Flexibility Act (“RFA”), 75 the Commission prepared an Initial Regulatory Flexibility Analysis (“IRFA”) of the possible significant economic impact on small entities by the policies and rules proposed in its Notice of Proposed Rulemaking, In the Matter of Assessment and Collection of Regulatory Fees for Fiscal Year 2007. 76 Written public comments were sought on the FY 2007 fees proposal, including comments on the IRFA. This present Final Regulatory Flexibility Analysis (“FRFA”) conforms to the RFA. 77

56. This rulemaking proceeding is initiated to amend the Schedule of Regulatory Fees in the amount of $290,295,160, the amount that Congress has required the Commission to recover. The Commission seeks to collect the necessary amount through its revised Schedule of Regulatory Fees in the most efficient manner possible and without undue public burden.

57. None.

58. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules and policies, if adopted. 78 The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.”  79 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 80 A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. 81

59. Small Businesses. Nationwide, there are a total of 22.4 million small businesses, according to SBA data. 82

60. Small Organizations. Nationwide, there are approximately 1.6 million small organizations. 83

61. Small Governmental Jurisdictions. The term “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.”  84 Census Bureau data for 2002 indicate that there were 87,525 local governmental jurisdictions in the United States. 85 We estimate that, of this total, 84,377 entities were “small governmental jurisdictions.”  86 Thus, we estimate that most governmental jurisdictions are small.

62. We have included small incumbent local exchange carriers in this present RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard ( e.g. , a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.”  87 The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent local exchange carriers are not dominant in their field of operation because any such dominance is not “national” in scope. 88 We have therefore included small incumbent local exchange carriers in this RFA analysis, although we emphasize that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts.

63. Incumbent Local Exchange Carriers (“ILECs”). Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. 89 According to Commission data, 90 1,303 carriers have reported that they are engaged in the provision of incumbent local exchange services. Of these 1,303 carriers, an estimated 1,020 have 1,500 or fewer employees and 283 have more than 1,500 employees. Consequently, the Commission estimates that most providers of incumbent local exchange service are small businesses that may be affected by these rules.

64. Competitive Local Exchange Carriers (“CLECs”), Competitive Access Providers (“CAPs”), “Shared-Tenant Service Providers,” and “Other Local Service Providers.” Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. 91 According to Commission data, 92 769 carriers have reported that they are engaged in the provision of either competitive access provider services or competitive local exchange carrier services. Of these 769 carriers, an estimated 676 have 1,500 or fewer employees and 94 have more than 1,500 employees. In addition, 12 carriers have reported that they are “Shared-Tenant Service Providers,” and all 12 are estimated to have 1,500 or fewer employees. In addition, 39 carriers have reported that they are “Other Local Service Providers.” Of the 39, an estimated 38 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that most providers of competitive local exchange service, competitive access providers, “Shared-Tenant Service Providers,” and “Other Local Service Providers” are small entities that may be affected by these rules.

65. Local Resellers. The SBA has developed a small business size standard for the category of Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees. 93 According to Commission data, 94 143 carriers have reported that they are engaged in the provision of local resale services. Of these, an estimated 141 have 1,500 or fewer employees and two have more than 1,500 employees. Consequently, the Commission estimates that the majority of local resellers are small entities that may be affected by these rules.

66. Toll Resellers. The SBA has developed a small business size standard for the category of Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees. 95 According to Commission data, 96 770 carriers have reported that they are engaged in the provision of toll resale services. Of these, an estimated 747 have 1,500 or fewer employees and 23 have more than 1,500 employees. Consequently, the Commission estimates that the majority of toll resellers are small entities that may be affected by these rules.

67. Payphone Service Providers (“PSPs”). Neither the Commission nor the SBA has developed a small business size standard specifically for payphone services providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. 97 According to Commission data, 98 654 carriers have reported that they are engaged in the provision of payphone services. Of these, an estimated 652 have 1,500 or fewer employees and two have more than 1,500 employees. Consequently, the Commission estimates that the majority of payphone service providers are small entities that may be affected by these rules.

68. Interexchange Carriers (“IXCs”). Neither the Commission nor the SBA has developed a small business size standard specifically for providers of interexchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. 99 According to Commission data, 100 316 carriers have reported that they are engaged in the provision of interexchange service. Of these, an estimated 292 have 1,500 or fewer employees and 24 have more than 1,500 employees. Consequently, the Commission estimates that the majority of IXCs are small entities that may be affected by these rules.

69. Operator Service Providers (“OSPs”). Neither the Commission nor the SBA has developed a small business size standard specifically for operator service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. 101 According to Commission data, 102 23 carriers have reported that they are engaged in the provision of operator services. Of these, an estimated 20 have 1,500 or fewer employees and three have more than 1,500 employees. Consequently, the Commission estimates that the majority of OSPs are small entities that may be affected by these rules.

70. Prepaid Calling Card Providers. Neither the Commission nor the SBA has developed a small business size standard specifically for prepaid calling card providers. The appropriate size standard under SBA rules is for the category Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees. 103 According to Commission data, 104 89 carriers have reported that they are engaged in the provision of prepaid calling cards. Of these, an estimated 88 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that the majority of prepaid calling card providers are small entities that may be affected by these rules.

71. 800 and 800-Like Service Subscribers. 105 Neither the Commission nor the SBA has developed a small business size standard specifically for 800 and 800-like service (“toll free”) subscribers. The appropriate size standard under SBA rules is for the category Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees. 106 The most reliable source of information regarding the number of these service subscribers appears to be data the Commission receives from Database Service Management on the 800, 866, 877, and 888 numbers in use. 107 According to our data, at the end of December 2004, the number of 800 numbers assigned was 7,540,453; the number of 888 numbers assigned was 5,947,789; the number of 877 numbers assigned was 4,805,568; and the number of 866 numbers assigned was 5,011,291. We do not have data specifying the number of these subscribers that are independently owned and operated or have 1,500 or fewer employees, and thus are unable at this time to estimate with greater precision the number of toll free subscribers that would qualify as small businesses under the SBA size standard. Consequently, we estimate that there are 7,540,453 or fewer small entity 800 subscribers; 5,947,789 or fewer small entity 888 subscribers; 4,805,568 or fewer small entity 877 subscribers, and 5,011,291 or fewer entity 866 subscribers.

72. International Service Providers. There is no small business size standard developed specifically for providers of international service. The appropriate size standards under SBA rules are for the two broad census categories of “Satellite Telecommunications” and “Other Telecommunications.” Under both categories, such a business is small if it has $13.5 million or less in average annual receipts. 108

73. The first category of Satellite Telecommunications “comprises establishments primarily engaged in providing point-to-point telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.”  109 For this category, Census Bureau data for 2002 show that there were a total of 371 firms that operated for the entire year. 110 Of this total, 307 firms had annual receipts of under $10 million, and 26 firms had receipts of $10 million to $24,999,999. 111 Consequently, we estimate that the majority of Satellite Telecommunications firms are small entities that might be affected by our action.

74. The second category of Other Telecommunications “comprises establishments primarily engaged in (1) providing specialized telecommunications applications, such as satellite tracking, communications telemetry, and radar station operations; or (2) providing satellite terminal stations and associated facilities operationally connected with one or more terrestrial communications systems and capable of transmitting telecommunications to or receiving telecommunications from satellite systems.”  112 For this category, Census Bureau data for 2002 show that there were a total of 332 firms that operated for the entire year. 113 Of this total, 259 firms had annual receipts of under $10 million and 15 firms had annual receipts of $10 million to $24,999,999. 114 Consequently, we estimate that the majority of Other Telecommunications firms are small entities that might be affected by our action.

75. Wireless Service Providers. The SBA has developed a small business size standard for wireless firms within the two broad economic census categories of “Paging”  115 and “Cellular and Other Wireless Telecommunications.”  116 Under both categories, the SBA deems a wireless business to be small if it has 1,500 or fewer employees. For the census category of Paging, Census Bureau data for 2002 show that there were 807 firms in this category that operated for the entire year. 117 Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more. 118 Thus, under this category and associated small business size standard, the majority of firms can be considered small. For the census category of Cellular and Other Wireless Telecommunications, Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year. 119 Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. 120 Thus, under this second category and size standard, the majority of firms can, again, be considered small.

76. Internet Service Providers. The SBA has developed a small business size standard for Internet Service Providers. This category comprises establishments “primarily engaged in providing direct access through telecommunications networks to computer-held information compiled or published by others.”  121 Under the SBA size standard, such a business is small if it has average annual receipts of $21 million or less. 122 According to Census Bureau data for 1997, there were 2,751 firms in this category that operated for the entire year. 123 Of these, 2,659 firms had annual receipts of under $10 million, and an additional 67 firms had receipts of between $10 million and $24,999,999. 124 Thus, under this size standard, the great majority of firms can be considered small entities.

77. Cellular Licensees. The SBA has developed a small business size standard for wireless firms within the two broad economic census categories of “Paging”  125 and “Cellular and Other Wireless Telecommunications.”  126 Under both categories, the SBA deems a wireless business to be small if it has 1,500 or fewer employees. For the census category of Paging, Census Bureau data for 2002 show that there were 807 firms in this category that operated for the entire year. 127 Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more. 128 Thus, under this category and associated small business size standard, the majority of firms can be considered small. For the census category of Cellular and Other Wireless Telecommunications, Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year. 129 Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. 130 Thus, under this second category and size standard, the majority of firms can, again, be considered small.

78. Common Carrier Paging. As noted, the SBA has developed a small business size standard for wireless firms within the broad economic census categories of “Cellular and Other Wireless Telecommunications.”  131 Under this SBA category, a wireless business is small if it has 1,500 or fewer employees. For the census category of Paging, U.S. Census Bureau data for 1997 show that there were 1,320 firms in this category, total, that operated for the entire year. 132 Of this total, 1,303 firms had employment of 999 or fewer employees, and an additional 17 firms had employment of 1,000 employees or more. 133 Thus, under this category and associated small business size standard, the great majority of firms can be considered small.

79. In addition, in the Paging Second Report and Order, the Commission adopted a size standard for “small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. 134 A small business is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years. 135 The SBA has approved this definition. 136 An auction of Metropolitan Economic Area (MEA) licenses commenced on February 24, 2000, and closed on March 2, 2000. Of the 2,499 licenses auctioned, 985 were sold. 137 Fifty-seven companies claiming small business status won 440 licenses. 138 An auction of MEA and Economic Area (EA) licenses commenced on October 30, 2001, and closed on December 5, 2001. Of the 15,514 licenses auctioned, 5,323 were sold. 139 One hundred thirty-two companies claiming small business status purchased 3,724 licenses. A third auction, consisting of 8,874 licenses in each of 175 EAs and 1,328 licenses in all but three of the 51 MEAs commenced on May 13, 2003, and closed on May 28, 2003. Seventy-seven bidders claiming small or very small business status won 2,093 licenses. 140 Currently, there are approximately 74,000 Common Carrier Paging licenses. According to the most recent Trends in Telephone Service, 408 private and common carriers reported that they were engaged in the provision of either paging or “other mobile” services. 141 Of these, we estimate that 589 are small, under the SBA-approved small business size standard. 142 We estimate that the majority of common carrier paging providers would qualify as small entities under the SBA definition.

80. Wireless Communications Services. This service can be used for fixed, mobile, radiolocation, and digital audio broadcasting satellite uses. The Commission defined “small business” for the wireless communications services (“WCS”) auction as an entity with average gross revenues of $40 million for each of the three preceding years, and a “very small business” as an entity with average gross revenues of $15 million for each of the three preceding years. 143 The SBA has approved these definitions. 144 The Commission auctioned geographic area licenses in the WCS service. In the auction, which commenced on April 15, 1997 and closed on April 25, 1997, there were seven bidders that won 31 licenses that qualified as very small business entities, and one bidder that won one license that qualified as a small business entity. An auction for one license in the 1670-1674 MHz band commenced on April 30, 2003 and closed the same day. One license was awarded. The winning bidder was not a small entity.

81. Wireless Telephony. Wireless telephony includes cellular, personal communications services, and specialized mobile radio telephony carriers. The SBA has developed a small business size standard for “Cellular and Other Wireless Telecommunications” services. 145 Under the SBA small business size standard, a business is small if it has 1,500 or fewer employees. 146 According to Trends in Telephone Service data, 437 carriers reported that they were engaged in wireless telephony. 147 We have estimated that 260 of these are small under the SBA small business size standard.

82. Broadband Personal Communications Service. The broadband personal communications services (“PCS”) spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission has created a small business size standard for Blocks C and F as an entity that has average gross revenues of less than $40 million in the three previous calendar years. 148 For Block F, an additional small business size standard for “very small business” was added and is defined as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. 149 These small business size standards, in the context of broadband PCS auctions, have been approved by the SBA. 150 No small businesses within the SBA-approved small business size standards bid successfully for licenses in Blocks A and B. There were 90 winning bidders that qualified as small entities in the Block C auctions. A total of 93 “small” and “very small” business bidders won approximately 40 percent of the 1,479 licenses for Blocks D, E, and F. 151 On March 23, 1999, the Commission reauctioned 155 C, D, E, and F Block licenses; there were 113 small business winning bidders. 152

83. On January 26, 2001, the Commission completed the auction of 422 C and F Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders in this auction, 29 qualified as “small” or “very small” businesses. 153 Subsequent events, concerning Auction 35, including judicial and agency determinations, resulted in a total of 163 C and F Block licenses being available for grant. On February 15, 2005, the Commission completed an auction of 188 C block licenses and 21 F block licenses in Auction No. 58. There were 24 winning bidders for 217 licenses. 154 Of the 24 winning bidders, 16 claimed small business status and won 156 licenses. On May 21, 2007, the Commission completed an auction of 38 Broadband PCS licenses in Auction No. 71, of which 26 were C block licenses and 6 were F block licenses. There were 12 winning bidders for the 33 C and F block licenses. Of the 12 winning bidders, four claimed small business status and won 16 licenses.

84. Narrowband Personal Communications Services. The Commission held an auction for Narrowband PCS licenses that commenced on July 25, 1994, and closed on July 29, 1994. A second auction commenced on October 26, 1994 and closed on November 8, 1994. For purposes of the first two Narrowband PCS auctions, “small businesses” were entities with average gross revenues for the prior three calendar years of $40 million or less. 155 Through these auctions, the Commission awarded a total of 41 licenses, 11 of which were obtained by four small businesses. 156 To ensure meaningful participation by small business entities in future auctions, the Commission adopted a two-tiered small business size standard in the Narrowband PCS Second Report and Order. 157 A “small business” is an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $40 million. 158 A “very small business” is an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $15 million. 159 The SBA has approved these small business size standards. 160 A third auction commenced on October 3, 2001 and closed on October 16, 2001. Here, five bidders won 317 (Metropolitan Trading Areas and nationwide) licenses. 161 Three of these claimed status as a small or very small entity and won 311 licenses.

85. Lower 700 MHz Band Licenses. We adopted criteria for defining three groups of small businesses for purposes of determining their eligibility for special provisions such as bidding credits. 162 We have defined a “small business” as an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $40 million for the preceding three years. 163 A “very small business” is defined as an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $15 million for the preceding three years. 164 Additionally, the lower 700 MHz Service has a third category of small business status that may be claimed for Metropolitan/Rural Service Area (MSA/RSA) licenses. The third category is “entrepreneur,” which is defined as an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $3 million for the preceding three years. 165 The SBA has approved these small size standards. 166 An auction of 740 licenses (one license in each of the 734 MSAs/RSAs and one license in each of the six Economic Area Groupings (“EAGs”)) commenced on August 27, 2002, and closed on September 18, 2002. Of the 740 licenses available for auction, 484 licenses were sold to 102 winning bidders. Seventy-two of the winning bidders claimed small business, very small business or entrepreneur status and won a total of 329 licenses. 167 A second auction commenced on May 28, 2003, and closed on June 13, 2003, and included 256 licenses: 5 EAG licenses and 476 Cellular Market Area licenses. 168 Seventeen winning bidders claimed small or very small business status and won 60 licenses, and nine winning bidders claimed entrepreneur status and won 154 licenses. 169 On July 26, 2005, the Commission completed an auction of 5 licenses in the Lower 700 MHz band (Auction No. 60). There were three winning bidders for five licenses. All three winning bidders claimed small business status.

86. Upper 700 MHz Band Licenses. The Commission released a Report and Order, authorizing service in the upper 700 MHz band. 170 This auction, previously scheduled for January 13, 2003, has been postponed. 171

87. 700 MHz Guard Band Licenses. In the 700 MHz Guard Band Order, we adopted size standards for “small businesses” and “very small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. 172 A small business in this service is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $40 million for the preceding three years. 173 Additionally, a very small business is an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $15 million for the preceding three years. 174 SBA approval of these definitions is not required. 175 An auction of 52 Major Economic Area (MEA) licenses commenced on September 6, 2000, and closed on September 21, 2000. 176 Of the 104 licenses auctioned, 96 licenses were sold to nine bidders. Five of these bidders were small businesses that won a total of 26 licenses. A second auction of 700 MHz Guard Band licenses commenced on February 13, 2001, and closed on February 21, 2001. All eight of the licenses auctioned were sold to three bidders. One of these bidders was a small business that won a total of two licenses. 177

88. Specialized Mobile Radio. The Commission awards “small entity” bidding credits in auctions for Specialized Mobile Radio (“SMR”) geographic area licenses in the 800 MHz and 900 MHz bands to firms that had revenues of no more than $15 million in each of the three previous calendar years. 178 The Commission awards “very small entity” bidding credits to firms that had revenues of no more than $3 million in each of the three previous calendar years. 179 The SBA has approved these small business size standards for the 900 MHz Service. 180 The Commission has held auctions for geographic area licenses in the 800 MHz and 900 MHz bands. The 900 MHz SMR auction began on December 5, 1995, and closed on April 15, 1996. Sixty bidders claiming that they qualified as small businesses under the $15 million size standard won 263 geographic area licenses in the 900 MHz SMR band. The 800 MHz SMR auction for the upper 200 channels began on October 28, 1997, and was completed on December 8, 1997. Ten bidders claiming that they qualified as small businesses under the $15 million size standard won 38 geographic area licenses for the upper 200 channels in the 800 MHz SMR band. 181 A second auction for the 800 MHz band was held on January 10, 2002 and closed on January 17, 2002 and included 23 BEA licenses. One bidder claiming small business status won five licenses. 182

89. The auction of the 1,053 800 MHz SMR geographic area licenses for the General Category channels began on August 16, 2000, and was completed on September 1, 2000. Eleven bidders won 108 geographic area licenses for the General Category channels in the 800 MHz SMR band qualified as small businesses under the $15 million size standard. 183 In an auction completed on December 5, 2000, a total of 2,800 Economic Area licenses in the lower 80 channels of the 800 MHz SMR service were sold. 184 Of the 22 winning bidders, 19 claimed small business status and won 129 licenses. Thus, combining all three auctions, 40 winning bidders for geographic licenses in the 800 MHz SMR band claimed status as small business.

90. In addition, there are numerous incumbent site-by-site SMR licensees and licensees with extended implementation authorizations in the 800 and 900 MHz bands. We do not know how many firms provide 800 MHz or 900 MHz geographic area SMR pursuant to extended implementation authorizations, nor how many of these providers have annual revenues of no more than $15 million. One firm has over $15 million in revenues. We assume, for purposes of this analysis, that all of the remaining existing extended implementation authorizations are held by small entities, as that small business size standard is approved by the SBA.

91. 220 MHz Radio Service—Phase I Licensees. The 220 MHz service has both Phase I and Phase II licenses. Phase I licensing was conducted by lotteries in 1992 and 1993. There are approximately 1,515 such non-nationwide licensees and four nationwide licensees currently authorized to operate in the 220 MHz band. The Commission has not developed a definition of small entities specifically applicable to such incumbent 220 MHz Phase I licensees. To estimate the number of such licensees that are small businesses, we apply the small business size standard under the SBA rules applicable to “Cellular and Other Wireless Telecommunications” companies. This category provides that a small business is a wireless company employing no more than 1,500 persons. 185 The Commission estimates that most such licensees are small businesses under the SBA's small business standard.

92. 220 MHz Radio Service—Phase II Licensees. The 220 MHz service has both Phase I and Phase II licenses. The Phase II 220 MHz service is a new service, and is subject to spectrum auctions. In the 220 MHz Third Report and Order, we adopted a small business size standard for defining “small” and “very small” businesses for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. 186 This small business standard indicates that a “small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years. 187 A “very small business” is defined as an entity that, together with its affiliates and controlling principals, has average gross revenues that do not exceed $3 million for the preceding three years. 188 The SBA has approved these small size standards. 189 Auctions of Phase II licenses commenced on September 15, 1998, and closed on October 22, 1998. 190 In the first auction, 908 licenses were auctioned in three different-sized geographic areas: three nationwide licenses, 30 Regional Economic Area Group (“EAG”) Licenses, and 875 Economic Area (“EA”) Licenses. Of the 908 licenses auctioned, 693 were sold. 191 Thirty-nine small businesses won 373 licenses in the first 220 MHz auction. A second auction included 225 licenses: 216 EA licenses and 9 EAG licenses. Fourteen companies claiming small business status won 158 licenses. 192 A third auction included four licenses: 2 BEA licenses and 2 EAG licenses in the 220 MHz service. No small or very small business won any of these licenses. 193

93. Private Land Mobile Radio (“PLMR”). PLMR systems serve an essential role in a range of industrial, business, land transportation, and public safety activities. These radios are used by companies of all sizes operating in all U.S. business categories, and are often used in support of the licensee's primary (non-telecommunications) business operations. For the purpose of determining whether a licensee of a PLMR system is a small business as defined by the SBA, we use the broad census category, “Cellular and Other Wireless Telecommunications.” This definition provides that a small entity is any such entity employing no more than 1,500 persons. 194 The Commission does not require PLMR licensees to disclose information about number of employees, so the Commission does not have information that could be used to determine how many PLMR licensees constitute small entities under this definition. We note that PLMR licensees generally use the licensed facilities in support of other business activities, and therefore, it would also be helpful to assess PLMR licensees under the standards applied to the particular industry subsector to which the licensee belongs. 195

94. The Commission's 1994 Annual Report on PLMRs  196 indicates that at the end of fiscal year 1994, there were 1,087,267 licensees operating 12,481,989 transmitters in the PLMR bands below 512 MHz. We note that any entity engaged in a commercial activity is eligible to hold a PLMR license, and that the revised rules in this context could therefore potentially impact small entities covering a great variety of industries.

95. Fixed Microwave Services. Fixed microwave services include common carrier, 197 private operational-fixed, 198 and broadcast auxiliary radio services. 199 At present, there are approximately 22,015 common carrier fixed licensees and 61,670 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services. The Commission has not created a size standard for a small business specifically with respect to fixed microwave services. For purposes of this analysis, the Commission uses the SBA small business size standard for the category “Cellular and Other Telecommunications,” which is 1,500 or fewer employees. 200 The Commission does not have data specifying the number of these licensees that have no more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of fixed microwave service licensees that would qualify as small business concerns under the SBA's small business size standard. Consequently, the Commission estimates that there are 22,015 or fewer common carrier fixed licensees and 61,670 or fewer private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services that may be small and may be affected by the rules and policies proposed herein. We note, however, that the common carrier microwave fixed licensee category includes some large entities.

96. 39 GHz Service. The Commission created a special small business size standard for 39 GHz licenses—an entity that has average gross revenues of $40 million or less in the three previous calendar years. 201 An additional size standard for “very small business” is: an entity that, together with affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. 202 The SBA has approved these small business size standards. 203 The auction of the 2,173 39 GHz licenses began on April 12, 2000 and closed on May 8, 2000. The 18 bidders who claimed small business status won 849 licenses.

97. Local Multipoint Distribution Service. Local Multipoint Distribution Service (“LMDS”) is a fixed broadband point-to-multipoint microwave service that provides for two-way video telecommunications. 204 The auction of the 986 LMDS licenses began on February 18, 1998 and closed on March 25, 1998. The Commission established a small business size standard for LMDS licenses as an entity that has average gross revenues of less than $40 million in the three previous calendar years. 205 An additional small business size standard for “very small business” was added as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. 206 The SBA has approved these small business size standards in the context of LMDS auctions. 207 There were 93 winning bidders that qualified as small entities in the LMDS auctions. A total of 93 small and very small business bidders won approximately 277 A Block licenses and 387 B Block licenses. On March 27, 1999, the Commission re-auctioned 161 licenses; there were 32 small and very small businesses winning that won 119 licenses.

98. 218-219 MHz Service. The first auction of 218-219 MHz (previously referred to as the Interactive and Video Data Service or IVDS) spectrum resulted in 178 entities winning licenses for 594 Metropolitan Statistical Areas (“MSAs”). 208 Of the 594 licenses, 567 were won by 167 entities qualifying as a small business. For that auction, we defined a small business as an entity that, together with its affiliates, has no more than a $6 million net worth and, after federal income taxes (excluding any carry over losses), has no more than $2 million in annual profits each year for the previous two years. 209 In the 218-219 MHz Report and Order and Memorandum Opinion and Order, we defined a small business as an entity that, together with its affiliates and persons or entities that hold interests in such an entity and their affiliates, has average annual gross revenues not exceeding $15 million for the preceding three years. 210 A very small business is defined as an entity that, together with its affiliates and persons or entities that hold interests in such an entity and its affiliates, has average annual gross revenues not exceeding $3 million for the preceding three years. 211 The SBA has approved of these definitions. 212 A subsequent auction is not yet scheduled. Given the success of small businesses in the previous auction, and the prevalence of small businesses in the subscription television services and message communications industries, we assume for purposes of this analysis that in future auctions, many, and perhaps most, of the licenses may be awarded to small businesses.

99. Location and Monitoring Service (“LMS”). Multilateration LMS systems use non-voice radio techniques to determine the location and status of mobile radio units. For purposes of auctioning LMS licenses, the Commission has defined “small business” as an entity that, together with controlling interests and affiliates, has average annual gross revenues for the preceding three years not exceeding $15 million. 213 A “very small business” is defined as an entity that, together with controlling interests and affiliates, has average annual gross revenues for the preceding three years not exceeding $3 million. 214 These definitions have been approved by the SBA. 215 An auction for LMS licenses commenced on February 23, 1999, and closed on March 5, 1999. Of the 528 licenses auctioned, 289 licenses were sold to four small businesses.

100. Rural Radiotelephone Service. The Commission has not adopted a size standard for small businesses specific to the Rural Radiotelephone Service. 216 A significant subset of the Rural Radiotelephone Service is the Basic Exchange Telephone Radio System (“BETRS”). 217 In the present context, we will use the SBA's small business size standard applicable to “Cellular and Other Wireless Telecommunications,” i.e. , an entity employing no more than 1,500 persons. 218 There are approximately 1,000 licensees in the Rural Radiotelephone Service, and the Commission estimates that there are 1,000 or fewer small entity licensees in the Rural Radiotelephone Service that may be affected by the rules adopted herein.

101. Air-Ground Radiotelephone Service. 219 We have previously used the SBA's small business definition applicable to “Cellular and Other Wireless Telecommunications,” i.e. , an entity employing no more than 1,500 persons. 220 There are approximately 100 licensees in the Air-Ground Radiotelephone Service, and under that definition, we estimate that almost all of them qualify as small entities under the SBA definition. For purposes of assigning Air-Ground Radiotelephone Service licenses through competitive bidding, the Commission has defined “small business” as an entity that, together with controlling interests and affiliates, has average annual gross revenues for the preceding three years not exceeding $40 million. 221 A “very small business” is defined as an entity that, together with controlling interests and affiliates, has average annual gross revenues for the preceding three years not exceeding $15 million. 222 These definitions were approved by the SBA. 223 In May 2006, the Commission completed an auction of nationwide commercial Air-Ground Radiotelephone Service licenses in the 800 MHz band (Auction No. 65). On June 2, 2006, the auction closed with two winning bidders winning two Air-Ground Radiotelephone Services licenses. Neither of the winning bidders claimed small business status.

102. Aviation and Marine Radio Services. Small businesses in the aviation and marine radio services use a very high frequency (“VHF”) marine or aircraft radio and, as appropriate, an emergency position-indicating radio beacon (and/or radar) or an emergency locator transmitter. The Commission has not developed a small business size standard specifically applicable to these small businesses. For purposes of this analysis, we will use the SBA small business size standard for the category “Cellular and Other Telecommunications,” which is 1,500 or fewer employees. 224 Most applicants for recreational licenses are individuals. Approximately 581,000 ship station licensees and 131,000 aircraft station licensees operate domestically and are not subject to the radio carriage requirements of any statute or treaty. For purposes of our evaluations in this analysis, we estimate that there are up to approximately 712,000 licensees that are small businesses (or individuals) under the SBA standard. In addition, between December 3, 1998 and December 14, 1998, the Commission held an auction of 42 VHF Public Coast licenses in the 157.1875-157.4500 MHz (ship transmit) and 161.775-162.0125 MHz (coast transmit) bands. For purposes of the auction, the Commission defined a “small” business as an entity that, together with controlling interests and affiliates, has average gross revenues for the preceding three years not to exceed $15 million dollars. In addition, a “very small” business is one that, together with controlling interests and affiliates, has average gross revenues for the preceding three years not to exceed $3 million dollars. 225 There are approximately 10,672 licensees in the Marine Coast Service, and the Commission estimates that almost all of them qualify as “small” businesses under the above special small business size standards.

103. Offshore Radiotelephone Service. This service operates on several ultra high frequencies (“UHF”) television broadcast channels that are not used for television broadcasting in the coastal areas of states bordering the Gulf of Mexico. 226 There are presently approximately 55 licensees in this service. We are unable to estimate at this time the number of licensees that would qualify as small under the SBA's small business size standard for “Cellular and Other Wireless Telecommunications” services. 227 Under that SBA small business size standard, a business is small if it has 1,500 or fewer employees. 228

104. Multiple Address Systems (“MAS”). Entities using MAS spectrum, in general, fall into two categories: (1) Those using the spectrum for profit-based uses, and (2) those using the spectrum for private internal uses. With respect to the first category, the Commission defines “small entity” for MAS licenses as an entity that has average gross revenues of less than $15 million in the three previous calendar years. 229 “Very small business” is defined as an entity that, together with its affiliates, has average gross revenues of not more than $3 million for the preceding three calendar years. 230 The SBA has approved of these definitions. 231 The majority of these entities will most likely be licensed in bands where the Commission has implemented a geographic area licensing approach that would require the use of competitive bidding procedures to resolve mutually exclusive applications. The Commission's licensing database indicates that, as of January 20, 1999, there were a total of 8,670 MAS station authorizations. Of these, 260 authorizations were associated with common carrier service. In addition, an auction for 5,104 MAS licenses in 176 EAs began November 14, 2001, and closed on November 27, 2001. 232 Seven winning bidders claimed status as small or very small businesses and won 611 licenses. On May 18, 2005, the Commission completed an auction (Auction No. 59) of 4,226 MAS licenses in the Fixed Microwave Services from the 928/959 and 932/941 MHz bands. Twenty-six winning bidders won a total of 2,323 licenses. Of the 26 winning bidders in this auction, five claimed small business status and won 1,891 licenses.

105. With respect to the second category, which consists of entities that use, or seek to use, MAS spectrum to accommodate internal communications needs, we note that MAS serves an essential role in a range of industrial, safety, business, and land transportation activities. MAS radios are used by companies of all sizes, operating in virtually all U.S. business categories, and by all types of public safety entities. For the majority of private internal users, the small business size standard developed by the SBA would be more appropriate. The applicable size standard in this instance appears to be that of “Cellular and Other Wireless Telecommunications.” This definition provides that a small entity is any such entity employing no more than 1,500 persons. 233 The Commission's licensing database indicates that, as of January 20, 1999, of the 8,670 total MAS station authorizations, 8,410 authorizations were for private radio service, and of these, 1,433 were for private land mobile radio service.

106. Incumbent 24 GHz Licensees. This analysis may affect incumbent licensees who were relocated to the 24 GHz band from the 18 GHz band, and applicants who wish to provide services in the 24 GHz band. The applicable SBA small business size standard is that of “Cellular and Other Wireless Telecommunications” companies. This category provides that such a company is small if it employs no more than 1,500 persons. 234 For the census category of Paging, Census Bureau data for 2002 show that there were 807 firms in this category that operated for the entire year. 235 Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more. 236 Thus, under this category and associated small business size standard, the majority of firms can be considered small. For the census category of Cellular and Other Wireless Telecommunications, Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year. 237 Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. 238 Thus, under this second category and size standard, the majority of firms can, again, be considered small. These broader census data notwithstanding, we believe that there are only two licensees in the 24 GHz band that were relocated from the 18 GHz band, Teligent  239 and TRW, Inc. It is our understanding that Teligent and its related companies have fewer than 1,500 employees, though this may change in the future. TRW is not a small entity. Thus, only one incumbent licensee in the 24 GHz band is a small business entity.

107. New 24 GHz Licensees. With respect to new applicants in the 24 GHz band, we have defined an “entrepreneur” as an entity that, together with controlling interests and affiliates, has average annual gross revenues for the three preceding years not exceeding $40 million. “Small business” in the 24 GHz band is defined as an entity that, together with controlling interests and affiliates, has average annual gross revenues for the three preceding years not exceeding $15 million. 240 “Very small business” in the 24 GHz band is defined as an entity that, together with controlling interests and affiliates, has average gross revenues not exceeding $3 million for the preceding three years. 241 The SBA has approved these definitions. 242 On July 28, 2004, the Commission completed an auction of 880 licenses. There were three winning bidders that won seven licenses. Of the three winning bidders, two claimed small business status and won five licenses.

108. Broadband Radio Service (“BRS”) and Educational Broadband Service (“EBS”). Broadband Radio Service systems, previously referred to as Multipoint Distribution Service (“MDS”) and Multichannel Multipoint Distribution Service (“MMDS”) systems, and “wireless cable,” transmit video programming to subscribers and provide two-way high speed data operations using the microwave frequencies of the Broadband Radio Service and Educational Broadband Service (previously referred to as the Instructional Television Fixed Service (“ITFS”). 243 In connection with the 1996 BRS auction, the Commission defined “small business” as an entity that, together with its affiliates, has average gross annual revenues that are not more than $40 million for the preceding three calendar years. 244 The SBA has approved of this standard. 245 The BRS auction resulted in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (“BTAs”). 246 Of the 67 auction winners, 61 claimed status as a small business. At this time, we estimate that of the 61 small business BRS auction winners, 48 remain small business licensees. BRS also includes licensees of stations authorized prior to the auction. In addition to the 48 small businesses that hold BTA authorizations, there are approximately 392 incumbent BRS licensees that are considered small entities. 247 After adding the number of small business auction licensees to the number of incumbent licensees not already counted, we find that there are currently approximately 440 BRS licenses that are defined as small businesses under either the SBA or the Commission's rules.

109. In addition, the SBA has developed a small business size standard for Cable and Other Program Distribution, 248 which includes all such companies generating $13.5 million or less in annual receipts. 249 According to the Census Bureau data for 2002, there were a total of 1,191 firms in this category that operated for the entire year. 250 Of this total, 1,087 firms had annual receipts of under $10 million, and 43 firms had receipts of $10 million or more, but less than $25 million. 251 Consequently, we estimate that the majority of providers in this service category are small businesses that may be affected by the rules and policies adopted herein. This SBA small business size standard is applicable to EBS. There are presently 2,032 EBS licensees. All but 100 of these licenses are held by educational institutions. Educational institutions are included in this analysis as small entities. 252 Thus, we estimate that at least 1,932 licensees are small entities. EBS is a non-profit non-broadcast service. We do not collect, nor are we aware of other collections of, annual revenue data for EBS licensees.

110. Television Broadcasting. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in broadcasting images together with sound. These establishments operate television broadcasting studios and facilities for the programming and transmission of programs to the public.”  253 The SBA has created a small business size standard for Television Broadcasting entities, which is: such firms having $13 million or less in annual receipts. 254 According to Commission staff review of the BIA Publications, Inc., Master Access Television Analyzer Database as of May 16, 2003, about 814 of the 1,220 commercial television stations in the United States had revenues of $12 (twelve) million or less. We note, however, that in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations  255 must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies.

111. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply do not exclude any television station from the definition of a small business on this basis and are therefore over-inclusive to that extent. Also as noted, an additional element of the definition of “small business” is that the entity must be independently owned and operated. We note that it is difficult at times to assess these criteria in the context of media entities and our estimates of small businesses to which they apply may be over-inclusive to this extent.

112. There are also 2,117 low power television stations (LPTV). 256 Given the nature of this service, we will presume that all LPTV licensees qualify as small entities under the above SBA small business size standard.

113. Radio Broadcasting. The SBA defines a radio broadcast entity that has $6 million or less in annual receipts as a small business. 257 Business concerns included in this industry are those “primarily engaged in broadcasting aural programs by radio to the public.”  258 According to Commission staff review of the BIA Publications, Inc., Master Access Radio Analyzer Database, as of May 16, 2003, about 10,427 of the 10,945 commercial radio stations in the United States have revenue of $6 million or less. We note, however, that many radio stations are affiliated with much larger corporations with much higher revenue, and that in assessing whether a business concern qualifies as small under the above definition, such business (control) affiliations  259 are included. 260 Our estimate, therefore likely overstates the number of small businesses that might be affected by the rules adopted herein.

114. Auxiliary, Special Broadcast and Other Program Distribution Services. This service involves a variety of transmitters, generally used to relay broadcast programming to the public (through translator and booster stations) or within the program distribution chain (from a remote news gathering unit back to the station). The Commission has not developed a definition of small entities applicable to broadcast auxiliary licensees. The applicable definitions of small entities are those, noted previously, under the SBA rules applicable to radio broadcasting stations and television broadcasting stations. 261

115. The Commission estimates that there are approximately 3,868 FM translators and boosters. 262 The Commission does not collect financial information on any broadcast facility, and the Department of Commerce does not collect financial information on these auxiliary broadcast facilities. We believe that most, if not all, of these auxiliary facilities could be classified as small businesses by themselves. We also recognize that most commercial translators and boosters are owned by a parent station which, in some cases, would be covered by the revenue definition of small business entity discussed above. These stations would likely have annual revenues that exceed the SBA maximum to be designated as a small business ($6.5 million for a radio station or $13.0 million for a TV station). Furthermore, they do not meet the Small Business Act's definition of a “small business concern” because they are not independently owned and operated. 263

116. Cable and Other Program Distribution. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged as third-party distribution systems for broadcast programming. The establishments of this industry deliver visual, aural, or textual programming received from cable networks, local television stations, or radio networks to consumers via cable or direct-to-home satellite systems on a subscription or fee basis. These establishments do not generally originate programming material.”  264 The SBA has developed a small business size standard for Cable and Other Program Distribution, which is: all such firms having $13.5 million or less in annual receipts. 265 According to Census Bureau data for 2002, there were a total of 1,191 firms in this category that operated for the entire year. 266 Of this total, 1,087 firms had annual receipts of under $10 million, and 43 firms had receipts of $10 million or more but less than $25 million. 267 Thus, under this size standard, the majority of firms can be considered small.

117. Cable Companies and Systems. The Commission has also developed its own small business size standards, for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers, nationwide. 268 Industry data indicate that, of 1,076 cable operators nationwide, all but eleven are small under this size standard. 269 In addition, under the Commission's rules, a “small system” is a cable system serving 15,000 or fewer subscribers. 270 Industry data indicate that, of 7,208 systems nationwide, 6,139 systems have less than 10,000 subscribers, and an additional 379 systems have 10,000-19,999 subscribers. 271 Thus, under this second size standard, most cable systems are small.

118. Cable System Operators. The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” 272 The Commission has determined that an operator serving fewer than 645,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. 273 Industry data indicate that, of 1,076 cable operators nationwide, all but ten are small under this size standard. 274 We note that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million, 275 and therefore we are unable to estimate more accurately the number of cable system operators that would qualify as small under this size standard.

119. Open Video Services. Open Video Service (“OVS”) systems provide subscription services. 276 The SBA has created a small business size standard for Cable and Other Program Distribution. 277 This standard provides that a small entity is one with $13.5 million or less in annual receipts. The Commission has certified approximately 25 OVS operators to serve 75 areas, and some of these are currently providing service. 278 Affiliates of Residential Communications Network, Inc. (RCN) received approval to operate OVS systems in New York City, Boston, Washington, DC, and other areas. RCN has sufficient revenues to assure that they do not qualify as a small business entity. Little financial information is available for the other entities that are authorized to provide OVS and are not yet operational. Given that some entities authorized to provide OVS service have not yet begun to generate revenues, the Commission concludes that up to 24 OVS operators (those remaining) might qualify as small businesses that may be affected by the rules and policies adopted herein.

120. Cable Television Relay Service. This service includes transmitters generally used to relay cable programming within cable television system distribution systems. The SBA has developed a small business size standard for Cable and Other Program Distribution, which is: all such firms having $13.5 million or less in annual receipts. 279 According to Census Bureau data for 2002, there were a total of 1,191 firms in this category that operated for the entire year. 280 Of this total, 1,087 firms had annual receipts of under $10 million, and 43 firms had receipts of $10 million or more but less than $25 million. 281 Thus, under this size standard, the majority of firms can be considered small.

121. Multichannel Video Distribution and Data Service. MVDDS is a terrestrial fixed microwave service operating in the 12.2-12.7 GHz band. The Commission adopted criteria for defining three groups of small businesses for purposes of determining their eligibility for special provisions such as bidding credits. It defined a very small business as an entity with average annual gross revenues not exceeding $3 million for the preceding three years; a small business as an entity with average annual gross revenues not exceeding $15 million for the preceding three years; and an entrepreneur as an entity with average annual gross revenues not exceeding $40 million for the preceding three years. 282 These definitions were approved by the SBA. 283 On January 27, 2004, the Commission completed an auction of 214 MVDDS licenses (Auction No. 53). In this auction, ten winning bidders won a total of 192 MVDDS licenses. 284 Eight of the ten winning bidders claimed small business status and won 144 of the licenses. The Commission also held an auction of MVDDS licenses on December 7, 2005 (Auction 63). Of the three winning bidders who won 22 licenses, two winning bidders, winning 21 of the licenses, claimed small business status. 285

122. Amateur Radio Service. These licensees are held by individuals in a noncommercial capacity; these licensees are not small entities.

123. Aviation and Marine Services. Small businesses in the aviation and marine radio services use a very high frequency (“VHF”) marine or aircraft radio and, as appropriate, an emergency position-indicating radio beacon (and/or radar) or an emergency locator transmitter. The Commission has not developed a small business size standard specifically applicable to these small businesses. For purposes of this analysis, the Commission uses the SBA small business size standard for the category “Cellular and Other Telecommunications,” which is 1,500 or fewer employees. 286 Most applicants for recreational licenses are individuals. Approximately 581,000 ship station licensees and 131,000 aircraft station licensees operate domestically and are not subject to the radio carriage requirements of any statute or treaty. For purposes of our evaluations in this analysis, we estimate that there are up to approximately 712,000 licensees that are small businesses (or individuals) under the SBA standard. In addition, between December 3, 1998 and December 14, 1998, the Commission held an auction of 42 VHF Public Coast licenses in the 157.1875-157.4500 MHz (ship transmit) and 161.775-162.0125 MHz (coast transmit) bands. For purposes of the auction, the Commission defined a “small” business as an entity that, together with controlling interests and affiliates, has average gross revenues for the preceding three years not to exceed $15 million dollars. In addition, a “very small” business is one that, together with controlling interests and affiliates, has average gross revenues for the preceding three years not to exceed $3 million dollars. 287 There are approximately 10,672 licensees in the Marine Coast Service, and the Commission estimates that almost all of them qualify as “small” businesses under the above special small business size standards.

124. Personal Radio Services. Personal radio services provide short-range, low power radio for personal communications, radio signaling, and business communications not provided for in other services. The Personal Radio Services include spectrum licensed under Part 95 of our rules. 288 These services include Citizen Band Radio Service (“CB”), General Mobile Radio Service (“GMRS”), Radio Control Radio Service (“R/C”), Family Radio Service (“FRS”), Wireless Medical Telemetry Service (“WMTS”), Medical Implant Communications Service (“MICS”), Low Power Radio Service (“LPRS”), and Multi-Use Radio Service (“MURS”). 289 There are a variety of methods used to license the spectrum in these rule parts, from licensing by rule, to conditioning operation on successful completion of a required test, to site-based licensing, to geographic area licensing. Under the RFA, the Commission is required to make a determination of which small entities are directly affected by the rules being adopted. Since all such entities are wireless, we apply the definition of cellular and other wireless telecommunications, pursuant to which a small entity is defined as employing 1,500 or fewer persons. 290 Many of the licensees in these services are individuals, and thus are not small entities. In addition, due to the mostly unlicensed and shared nature of the spectrum utilized in many of these services, the Commission lacks direct information upon which to base an estimation of the number of small entities under an SBA definition that might be directly affected by the rules adopted herein.

125. Public Safety Radio Services. Public Safety radio services include police, fire, local government, forestry conservation, highway maintenance, and emergency medical services. 291 There are a total of approximately 127,540 licensees in these services. Governmental entities  292 as well as private businesses comprise the licensees for these services. All governmental entities with populations of less than 50,000 fall within the definition of a small entity. 293

126. With certain exceptions, the Commission's Schedule of Regulatory Fees applies to all Commission licensees and regulatees. Most licensees will be required to count the number of licenses or call signs authorized, complete and submit an FCC Form 159 Remittance Advice, and pay a regulatory fee based on the number of licenses or call signs. 294 Interstate telephone service providers must compute their annual regulatory fee based on their interstate and international end-user revenue using information they already supply to the Commission in compliance with the Form 499-A, Telecommunications Reporting Worksheet, and they must complete and submit the FCC Form 159. Compliance with the fee schedule will require some licensees to tabulate the number of units (e.g., cellular telephones, pagers, cable TV subscribers) they have in service, and complete and submit an FCC Form 159. Licensees ordinarily will keep a list of the number of units they have in service as part of their normal business practices. No additional outside professional skills are required to complete the FCC Form 159, and it can be completed by the employees responsible for an entity's business records.

127. Each licensee must submit the FCC Form 159 to the Commission's lockbox bank after computing the number of units subject to the fee. Licensees may also file electronically to minimize the burden of submitting multiple copies of the FCC Form 159. Applicants who pay small fees in advance and provide fee information as part of their application must use FCC Form 159.

128. Licensees and regulatees are advised that failure to submit the required regulatory fee in a timely manner will subject the licensee or regulatee to a late payment penalty of 25 percent in addition to the required fee. 295 If payment is not received, new or pending applications may be dismissed, and existing authorizations may be subject to rescission. 296 Further, in accordance with the Debt Collection Improvement Act of 1996 (DCIA), Public Law 194-134, federal agencies may bar a person or entity from obtaining a federal loan or loan insurance guarantee if that person or entity fails to pay a delinquent debt owed to any federal agency. 297 Nonpayment of regulatory fees is a debt owed the United States pursuant to 31 U.S.C. 3711 et seq. , and the DCIA. Appropriate enforcement measures as well as administrative and judicial remedies, may be exercised by the Commission. Debts owed to the Commission may result in a person or entity being denied a federal loan or loan guarantee pending before another federal agency until such obligations are paid. 298

129. The Commission's rules currently provide for relief in exceptional circumstances. Persons or entities may request a waiver, reduction or deferment of payment of the regulatory fee. 299 However, timely submission of the required regulatory fee must accompany requests for waivers or reductions. This will avoid any late payment penalty if the request is denied. The fee will be refunded if the request is granted. In exceptional and compelling instances (where payment of the regulatory fee along with the waiver or reduction request could result in reduction of service to a community or other financial hardship to the licensee), the Commission will defer payment in response to a request filed with the appropriate supporting documentation.

130. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. 300 In the NPRM , we sought comment on alternatives that might simplify our fee procedures or otherwise benefit filers, including small entities, while remaining consistent with our statutory responsibilities in this proceeding.

131. The Omnibus Appropriations Act for FY 2007, Public Law 109-383, requires the Commission to revise its Schedule of Regulatory Fees in order to recover the amount of regulatory fees that Congress, pursuant to Section 9(a) of the Communications Act, as amended, has required the Commission to collect for FY 2007. 301 As noted, we sought comment on the proposed methodology for implementing these statutory requirements and any other potential impact of these proposals on small entities.

132. Several categories of licensees and regulatees are exempt from payment of regulatory fees. See, e.g. , footnote 294, supra. Also, waiver procedures provide regulatees, including small entity regulatees, relief in exceptional circumstances. See Section IV, supra.

133. Report to Small Business Administration: The Commission will send a copy of this Report and Order, including a copy of the FRFA to the Chief Counsel for Advocacy of the Small Business Administration. The Report and Order and FRFA (or summaries thereof) will also be published in the Federal Register .

134. Report to Congress: The Commission will send a copy of this FRFA, along with this Report and Order , in a report to Congress pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

In order to calculate individual service fees for FY 2007, we adjusted FY 2006 payment units for each service to more accurately reflect expected FY 2007 payment liabilities. We obtained our updated estimates through a variety of means. For example, we used Commission licensee data bases, actual prior year payment records and industry and trade association projections when available. The databases we consulted include our Universal Licensing System (ULS), International Bureau Filing System (IBFS), Consolidated Database System (CDBS) and Cable Operations and Licensing System (COALS), as well as reports generated within the Commission such as the Wireline Competition Bureau's Trends in Telephone Service and the Wireless Telecommunications Bureau's Numbering Resource Utilization Forecast .

We tried to obtain verification for these estimates from multiple sources and in all cases; we compared FY 2007 estimates with actual FY 2006 payment units to ensure that our revised estimates were reasonable. Where appropriate, we adjusted and/or rounded our final estimates to take into consideration the fact that certain variables that impact on the number of payment units cannot yet be estimated exactly. These include an unknown number of waivers and/or exemptions that may occur in FY 2007 and the fact that, in many services, the number of actual licensees or station operators fluctuates from time to time due to economic, technical or other reasons. Therefore, when we note, for example, that our estimated FY 2007 payment units are based on FY 2006 actual payment units, it does not necessarily mean that our FY 2007 projection is exactly the same number as FY 2006. It means that we have either rounded the FY 2007 number or adjusted it slightly to account for these variables.

Regulatory fees for the categories shaded in gray are collected by the Commission in advance to cover the term of the license and are submitted along with the application at the time the application is filed.

Regulatory fees for the categories shaded in gray are collected by the Commission in advance to cover the term of the license and are submitted along with the application at the time the application is filed.

For stations with nondirectional daytime antennas, the theoretical radiation was used at all azimuths. For stations with directional daytime antennas, specific information on each day tower, including field ratio, phasing, spacing and orientation was retrieved, as well as the theoretical pattern root-mean-square of the radiation in all directions in the horizontal plane (RMS) figure milliVolt per meter (mV/m) @ 1 km) for the antenna system. The standard, or modified standard if pertinent, horizontal plane radiation pattern was calculated using techniques and methods specified in sections 73.150 and 73.152 of the Commission's rules. 302 Radiation values were calculated for each of 360 radials around the transmitter site. Next, estimated soil conductivity data was retrieved from a database representing the information in FCC Figure R3. 303 Using the calculated horizontal radiation values, and the retrieved soil conductivity data, the distance to the principal community (5 mV/m) contour was predicted for each of the 360 radials. The resulting distance to principal community contours were used to form a geographical polygon. Population counting was accomplished by determining which 2000 block centroids were contained in the polygon. (A block centroid is the center point of a small area containing population as computed by the U.S. Census Bureau.) The sum of the population figures for all enclosed blocks represents the total population for the predicted principal community coverage area.

The greater of the horizontal or vertical effective radiated power (ERP) (kW) and respective height above average terrain (HAAT) (m) combination was used. Where the antenna height above mean sea level (HAMSL) was available, it was used in lieu of the average HAAT figure to calculate specific HAAT figures for each of 360 radials under study. Any available directional pattern information was applied as well, to produce a radial-specific ERP figure. The HAAT and ERP figures were used in conjunction with the Field Strength (50-50) propagation curves specified in 47 CFR 73.313 of the Commission's rules to predict the distance to the principal community (70 dBu (decibel above 1 microVolt per meter) or 3.17 mV/m) contour for each of the 360 radials. 304 The resulting distance to principal community contours were used to form a geographical polygon. Population counting was accomplished by determining which 2000 block centroids were contained in the polygon. The sum of the population figures for all enclosed blocks represents the total population for the predicted principal community coverage area.

I concur in today's item to emphasize my long-held and oft-repeated belief that the Commission should consider opening a formal rulemaking to address the adjustment of regulatory fees pursuant to section 9(b)(3) of the Act. In a rapidly-evolving communications marketplace, we need to look for ways to ensure that our regulatory fee methodologies continue to reflect the industries we regulate. In the absence of a separate rulemaking, I would have preferred to address the submarine cable issue in the Further Notice adopted herein. I hope that we act on the pending petition for rulemaking quickly.

As in years past, I must concur to our Regulatory Fee Order because I remain troubled with the Commission's inability and reluctance to consider changes that occur from time to time in the costs of regulatory fees for individual services. It is particularly disappointing that the Commission misses an opportunity to address in this Further Notice the regulatory fees paid by submarine cable operators, who have argued that the current fee structure results in certain operators paying fees that can approach the wholesale prices they receive from their consumers. Given that these operators have pending a petition for rulemaking before the Commission, it is high time for the Commission to seek comment on these issues and is regrettable that we do not do so here. I encourage the Commission to continue to improve its regulatory fee assessment processes so that in the future we are more able to make adjustments as appropriate.

This document announces that, on June 25, 2007, OMB approved, for a period of three years, the revised information collection requirements contained in 47 CFR 64.4002, published at 71 FR 74819, December 13, 2006. The OMB Control Number is 3060-1084. The Commission publishes this notice of the effective date of the rules. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please write to Cathy Williams, Federal Communications Commission, Room 1-C823, 445 12th Street, SW., Washington, DC 20554. Please include the OMB Control Number, 3060-1084, in your correspondence. The Commission will also accept your comments via the Internet if you send them to PRA@fcc.gov.

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received OMB approval on June 25, 2007, for the revised information collection requirements contained in the Commission's rules at 47 CFR 64.4002. The OMB Control Number is 3060-1084. The total annual reporting burden for respondents for these collections of information, including the time for gathering and maintaining the collection of information, is estimated to be: 1,778 respondents, a total annual hourly burden of 39,840 hours, and $0 in total annual costs.

Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a valid OMB Control Number.

The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

The CWSA was signed into law on December 19, 2003 (Pub. L. 108-191). The purpose of the CWSA is to amend the Lacey Act Amendments of 1981 to further the conservation of certain wildlife species and to protect the public from dangerous animals.

In the early 1900s, Congress recognized the need to support States in protecting their game animals and birds by prohibiting the interstate shipment of wildlife killed in violation of State or territorial laws. Today this legislation is known as the Lacey Act, named for its principal sponsor, U.S. Representative John Fletcher Lacey. Most significantly amended in 1981, the Lacey Act makes it unlawful to import, export, transport, sell, receive, acquire, or purchase fish, wildlife, or plants taken, possessed, transported, or sold in violation of any Federal, State, foreign, or Native American tribal law, treaty, or regulation. The Lacey Act applies to all fish and wildlife (including their parts or products), and to wild plants (including plant parts) that are indigenous to the United States and are included in the appendices to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) or are listed under a State conservation law.

According to the U.S. Senate report, the Lacey Act did not explicitly address the problem of the increasing trade in certain big cat species. The big cat species addressed in this rule are the lion, tiger, leopard, snow leopard, clouded leopard, cheetah, jaguar, cougar, and any hybrid combination of any of these species. They are extremely effective predators, capable in the wild of taking down prey twice their own size. Severe damage to the prey's nervous system caused by damage to the vertebral column, along with massive blood loss and nearly instant suffocation, all contribute to the prey's certain and nearly immediate death. Regardless of whether they were raised in captivity, big cats are hunters by nature: it is impossible to predict when they will revert to instinct. Contemporary experts on big cat behavior and physiology note that humans are not part of the big cats' natural diet, largely because big cats have learned to treat humans as another predator and to be wary of the dangers of human activity (for example, hunting and habitat encroachment). When big cats and humans do share territory or interact, usually because of human activity, any number of reasons, including hunger, can cause big cats to attack and inflict serious injuries. They are wild creatures that are never completely tamed, nor are they totally predictable, even if they have lived their entire lives with humans.

According to the U.S. Senate report, the ownership of big cats has dramatically increased in popularity. It is estimated that thousands of individual big cats are kept as pets in the United States. This increase is due, in part, to internet sales and auctions. This increase in popularity has raised concerns for public safety as well as for the welfare of the big cats. As big cats are often purchased when young, many owners are unable to cope with the high maintenance needs of mature big cats. Too often, the owners lack the resources and veterinary knowledge these grown cats require. In the hands of untrained exotic-pet fanciers, big cats are not only a potential danger to people, but are often victims themselves. Additionally, the burden of care often lands on already financially strained sanctuaries or humane societies after the big cats are abandoned because they are too dangerous to keep or too expensive to care for properly.

According to the U.S. Senate report, over the past 10 years, there have been thousands of incidents of human injury and death documented, involving many different species of wild animals, many of which were big cats. According to the Captive Wild Animal Protection Coalition, in the past 5 years there have been 123 incidents involving big cats, including 87 injuries or deaths to adults and children and 38 animal escapes. Nineteen States (Alabama, Alaska, California, Colorado, Connecticut, Florida, Georgia, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Nebraska, New Hampshire, New Mexico, Tennessee, Utah, Vermont, and Wyoming) prohibit the private possession of big cats. Sixteen States (Arizona, Delaware, Indiana, Maine, Mississippi, Montana, New Jersey, New York, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Texas, and Virginia) have a partial ban on possession of big cats or require permits for their possession. Fifteen States (Arkansas, Idaho, Iowa, Kansas, Kentucky, Louisiana, Minnesota, Missouri, Nevada, North Carolina, Ohio, South Carolina, Washington, West Virginia, and Wisconsin) do not address the issue of private ownership of big cats.

In consideration of the above information, Congress has recognized the need to address the issue of ownership of big cats on a nationwide basis. Therefore, with the passage of the CWSA, Congress amended the Lacey Act to address this issue. The CWSA amends the Lacey Act by adding prohibitions that make it illegal to import, export, transport, sell, receive, acquire, or purchase, in interstate or foreign commerce, live lions, tigers, leopards, snow leopards, clouded leopards, cheetahs, jaguars, or cougars, or any hybrid combination of any of these species, unless certain listed exceptions apply.

In this final rule, we are implementing the CWSA in a new subpart K of part 14, Importation, Exportation, and Transportation of Wildlife, in title 50 of the Code of Federal Regulations.

On January 31, 2006, we published a proposed rule to establish the new subpart K, including the definitions, for the CWSA (71 FR 5041). The public comment period remained open until March 2, 2006.

We received 1,485 comments, including 1,466 form letters, in support of the proposed rule. We received 14 comments opposed to the proposed rule.

We received 11 comments addressing the ownership of big cats including 7 stating that the regulations to implement the CWSA should not ban private ownership, 1 stating that the regulations to implement the CWSA should ban private ownership, 2 stating that private ownership was not impacting public safety, and 1 stating that denying private ownership will have an adverse effect on productivity and innovation.

Our Response: Regulations must be consistent with Congress' intent for the statute. The CWSA prohibits the importation, exportation, transportation, sale, receipt, acquisition, or purchase, in interstate or foreign commerce, of the prohibited wildlife species. However, the CWSA does not prohibit the ownership or possession of the prohibited wildlife species. The CWSA does not address all safety issues with privately owned big cats, although the statute does provide improved safety for the public by limiting the exception for accredited wildlife sanctuaries to those that prohibit direct contact with the prohibited wildlife species. The CWSA should not have a major impact on productivity or innovation, since it does not prohibit the acquisition or possession of the prohibited wildlife species within a given State.

We received 25 comments stating that the CWSA should not regulate the transportation of personal property across State lines. Comments specified that: (1) The CWSA should allow interstate household moves; (2) Animals will be placed at risk when they are in need of veterinary care for those owners that have providers across State lines; (3) The feline community will be prevented from moving displaced big cats; (4) Interstate transport is vital to propagation; and (5) Private owners should be able to transport big cats across State lines for donation to U.S. Department of Agriculture's Animal and Plant Health Inspection Service (APHIS) facilities or accredited sanctuaries.

Our Response: Congress set the prohibitions under the CWSA, which include the import, export, transport, sale, receipt, acquisition, or purchase, in interstate or foreign commerce, of any of the prohibited wildlife species. The prohibitions and exemptions contained in the CWSA are clearly stated, and we cannot develop regulations that alter these prohibitions or create exemptions for additional activities such as household moves, without the authority from Congress. It is important to note that the transport prohibition contained in the CWSA applies to any transportation of the prohibited wildlife species in interstate or foreign commerce, not only to transportation that involves commercial activity. This prohibition is based upon the accepted legal definition of interstate commerce, which includes the transportation of property between any U.S. State, territory or jurisdiction. That means that any person who owns a live specimen of a prohibited wildlife species and who wants to transport the animal in interstate commerce as a pet, for veterinary care or even as part of a household move, is not allowed to do so under the prohibitions contained in the CWSA unless they qualify under one of the exemptions. If need be, APHIS-licensed organizations, accredited wildlife sanctuaries, or other entities exempted under the CWSA could make arrangements for the transportation across State lines of displaced big cats or for the transportation of big cats that are being donated to exempted entities by private individuals. Though we recognize that there may be reasons to transport the prohibited wildlife species across State lines for the purposes of propagation, the large number of big cats within the United States suggests that there are likely to be opportunities for propagation within a given State, which would not be prohibited under the CWSA.

We received eight comments regarding public safety and big cats, including five comments stating that the CWSA is falsely based on the need for public safety and three comments stating that the CWSA does not provide increased public safety.

Our Response: Statistics show a considerable number of injuries or deaths attributable to big cats. This number is likely to increase as the ownership of big cats increases in popularity, with many of the specimens ultimately being placed in sanctuaries that are accessible to the general public. The CWSA does not address all safety issues with privately owned big cats, although the statute does provide improved safety for the public by limiting the exception for accredited wildlife sanctuaries to those that prohibit direct contact with the prohibited wildlife species.

We received 11 comments questioning the influence of the animal-rights movement or animal sanctuary operators on the development of the regulations to implement the CWSA, including the prominent role of the Captive Wild Animal Protection Coalition. These comments stated that these organizations might attempt to influence us in the development of these regulations.

Our Response: Neither the animal-rights movement nor any animal sanctuary operators improperly influenced us in the development of the regulations to implement the CWSA. One particular organization, the Captive Wild Animal Protection Coalition, did provide data for a U.S. Senate Report that was drafted during the development of the CWSA, and we referenced that data in the proposed rule (71 FR 5041). We impartially considered all relevant information, including information received from the public, during the development of the final rule.

We received five comments questioning the validity of statistics on incidents of human injury or death attributed to big cats.

Our Response: As we have clarified in the preamble of this final rule, the statistics on incidents of human injury or death attributed to big cats were included in a U.S. Senate Report that was drafted during the development of the CWSA. These statistics thus served as part of Congress' basis for enacting the CWSA and were referenced for informational purposes in the proposed rule (71 FR 5041) and this final rule, but were not used in the development of our regulations to implement the CWSA.

We received two comments questioning the accuracy of big cat ownership statistics in the preamble of the proposed rule.

Our Response: As we have clarified in the preamble of this final rule, the discussion on ownership statistics in the preamble of the proposed rule was included in a U.S. Senate Report that was drafted during the development of the CWSA. The report was referenced for informational purposes in the proposed rule and this final rule to illustrate the Congressional intent behind the CWSA, but the statistics were not used in the development of the regulations to implement the CWSA.

We received four comments questioning the nature of big cats and the inability of owners to cope with big cats detailed in the preamble of the proposed rule.

Our Response: As we have clarified in the preamble of this final rule, the supporting information on the nature of big cats and the inability of owners to cope with big cats in the preamble of the proposed rule was included in a U.S. Senate Report that was drafted during the development of the CWSA. This information served as part of Congress' basis for enacting the CWSA and was referenced for informational purposes in the proposed rule and this final rule, but was not used in the development of the regulations to implement the CWSA.

We received eight comments that the CWSA does not promote the conservation of wild populations of the prohibited wildlife species.

Our Response: The CWSA primarily addresses public safety. Most captive big cats now in the United States were bred here, and the demand for these animals continues to be met without any impact on wild populations. In fact, even the endangered big cats moving in the domestic exotic pet trade are considered of little value to the ultimate survival of the species. We have no evidence to suggest that the popularity of these prohibited wildlife species in the U.S. pet trade has prompted removal of these animals from the wild, or that this trend represents a threat in any way to the conservation of the big cats.

We received five comments suggesting that the list of prohibited species includes species not authorized by Congress and suggesting changes to the list of prohibited wildlife species. These suggested changes include expanding the definition to include all wild and exotic cat species or reducing the definition to include only the lion, tiger, and jaguar, and not including the cougar as a prohibited species and not making hybrids subject to the CWSA.

Our Response: We have reviewed the intent of Congress with regard to the actual species to be included in the definition of “prohibited wildlife species” under the CWSA, since scientific names were not included in the CWSA. However, scientific names for “prohibited wildlife species,” and any hybrids resulting from breeding of any combination of any of the prohibited wildlife species, were included in the report accompanying S. 269, the Senate version of the CWSA. Based upon this report, we conclude that Congress intended to include the lion ( Panthera leo ), tiger ( Panthera tigris ), leopard ( Panthera pardus ), snow leopard ( Uncia uncia ), clouded leopard ( Neofelis nebulosa ), jaguar ( Panthera onca ), cheetah ( Acinonyx jubatus ), and cougar ( Puma concolor ), including all subspecies of each of these species, or any hybrid combination of any of these species. Therefore, we are making no changes to the list of prohibited species under the CWSA.

We received 20 comments suggesting changes to the accreditation of wildlife sanctuaries in the proposed rule. Comments recommended that:

• We clarify the breeding prohibitions in these sanctuaries;

• We better explain how we will monitor these sanctuaries;

• Sanctuaries should not be self-accredited, but rather accredited by an outside accrediting organization;

• One organization's resource might be of assistance in helping us develop the criteria for accredited sanctuaries;

• Proof of sterilization should remove the restriction of having male and female specimens in the same cage;

• Legitimate sanctuaries should not be denied the right to possess the prohibited wildlife species;

• Breeding should be allowed in wildlife sanctuaries;

• The determination of whether an accredited wildlife sanctuary can breed should be made by an accrediting organization;

• The requirement to keep opposite sexes housed separately may be costly or impractical;

• Wildlife sanctuaries should not have to be tax-exempt;

• Commercial trade should not be considered when evaluating wildlife sanctuaries;

• Recordkeeping requirements on wildlife sanctuaries will create serious financial and resource burdens on those sanctuaries;

• The $15,000 annual burden estimate for recordkeeping may cripple a small sanctuary; and

• We specify what happens if a sanctuary does not meet the criteria to be accredited.

Our Response: The CWSA specifically states that an accredited sanctuary must be tax-exempt, it must not commercially trade in the prohibited wildlife species, and it must not breed the prohibited wildlife species. Our definition of “propagate” clearly addresses that restriction. Our monitoring of these sanctuaries is accomplished through the requirement that accredited wildlife sanctuaries must maintain complete and accurate records of any possession, transportation, acquisition, disposition, importation, or exportation of the prohibited wildlife species and that these records must be accessible to Service officials for inspection upon request, at reasonable hours. We considered options for developing some type of formal accreditation mechanism for wildlife sanctuaries, but concluded for a number of reasons that such a step was not practical. The CWSA itself sets specific criteria that must be met for a sanctuary to qualify as “accredited.” We have decided that if a sanctuary meets these four criteria, it will qualify as accredited and be exempt from CWSA prohibitions. Other sanctuaries that do not meet these criteria will continue to be able to possess big cats but will not be able to import, export or transport them in interstate or foreign commerce. In the proposed rule (71 FR 5041), January 31, 2006, we stated that placing male and female big cats in the same cage for any period of time may result in breeding and is considered propagation; however, we recognize that sterilization will prevent propagation and that proof of that sterilization should assist a sanctuary in qualifying as “accredited.” We will only consider a wildlife sanctuary to be exempt from the prohibitions of the CWSA if it meets the four criteria for accredited wildlife sanctuaries provided in the CWSA.

We are requiring accredited wildlife sanctuaries to maintain complete and accurate records of any possession, transportation, sale, acquisition, purchase, barter, disposition, importation, or exportation of the prohibited wildlife species. However, we do not anticipate that this recordkeeping requirement will impose any significant burden, because the maintenance of these records is typically a normal business practice. Most wildlife sanctuaries will likely only have custody of a limited number of specimens of the prohibited wildlife species. Therefore, complying with the requirement to make records available can likely be met by making available and copying, if needed, a small number of documents pertaining to the possession, transportation, acquisition, disposition, importation, or exportation of the prohibited wildlife species, which we estimate can be completed in an hour or less.

We estimate that there are no more than 750 wildlife sanctuaries that could qualify for the “accredited wildlife sanctuary” exemption. The total estimated annual burden for complying with this recordkeeping requirement for all of these wildlife sanctuaries combined should be 750 hours or less. We estimate that the average wage of individuals likely to be providing these documents is $20.00 per hour. Therefore, the total estimated cost of this recordkeeping requirement for all of these wildlife sanctuaries would be $15,000.00, if we requested that all wildlife sanctuaries copy their records. The estimated annual cost of this recordkeeping requirement for each wildlife sanctuary is $20.00.

We received 15 comments on certain other exemptions under the CWSA. These comments included the following:

• The definition of a “licensed” person is too broad;

• Only wildlife sanctuaries should be allowed to possess the prohibited species;

• The exemption for State-licensed veterinarians or registered persons is invalid;

• The registered person exemption needs to be clarified;

• The proposed criteria and recordkeeping requirements for accredited wildlife sanctuaries should be extended to all of the exempted entities;

• All exempted entities should prohibit direct contact, breeding, and selling;

• Specific facility and caging requirements should be established;

• Legitimate organizations should not have to justify their existence;

• Nonlicensed entities should be allowed to transport live big cats through the use of registered persons;

• A hobbyist or fancier's exemption should be created in the regulations to implement the CWSA;

• A blanket exemption should be created for public charities that are not regulated by any government agency other than the Internal Revenue Service; and

• Careless or incompetent owners should be prevented from obtaining APHIS permits.

Our Response: The exemptions provided in the CWSA are clearly stated, and we cannot develop regulations that are contrary to Congress' intent for those exemptions, remove any of those exemptions, or create additional exemptions. The CWSA and these regulations do not address who can possess big cats. The CWSA does provide an exemption for registered persons transporting these prohibited wildlife species. Specific facility and caging requirements for APHIS-licensed organizations are not addressed in the CWSA and are not included in our regulations to implement the CWSA. Specific facility and caging requirements are governed by the Animal Welfare Act (AWA), so any person licensed or registered under the AWA will be subject to those requirements. Also, States may have requirements for contact between people and animals, breeding, selling, and care, and State-licensed universities, wildlife rehabilitators, and veterinarians would be subject to those requirements. The CWSA itself sets specific conditions that must be met for an “accredited sanctuary” to be exempted. If a sanctuary meets these four criteria, even without meeting specific facility and caging requirements, we will recognize it as accredited and exempt it from CWSA prohibitions. We will consider an organization to be covered by an exemption only if it's qualified for one of the exemptions provided in the CWSA. The CWSA does not require legitimate organizations to justify their existence. If an organization does not qualify, it does not necessarily mean that it is not legitimate. It simply means that it cannot move big cats under the exemptions provided in the CWSA. In order for a hobbyist, fancier, or a public charity to be exempted from the prohibitions of the CWSA, it would have to qualify for one of the existing exemptions provided in the CWSA. APHIS standards are not addressed in the CWSA and are not included in the regulations to implement the CWSA. Persons licensed or registered by APHIS under the AWA must comply with AWA requirements and will be held accountable under those standards by APHIS.

We received six comments suggesting that APHIS should not license any of the entities exempted under the CWSA, or that APHIS should license exempted wildlife sanctuaries, or that the standards APHIS uses in licensing entities should be strengthened because they currently don't ensure public safety or animal welfare.

Our Response: The role that APHIS plays in the implementation of the CWSA is clearly defined in the CWSA itself, and includes the licensing or registration of certain entities that meet APHIS standards. APHIS standards are not addressed in the CWSA and are not included in our regulations to implement the CWSA. Persons licensed or registered by APHIS under the AWA must comply with AWA requirements and will be held accountable under those standards by APHIS.

We received seven comments addressing the State or local regulation of these prohibited wildlife species and public safety. These commenters asserted that: (1) This issue was most effectively addressed at the State or local level; (2) If needed, these regulations should clearly indicate that they take precedence over State law; (3) Enforcement of the CWSA should be proactive and coordinated at all levels of government; (4) The information on State prohibitions in the preamble of the proposed rule was inaccurate; (5) The CWSA should not support State restrictions; and (6) The compartmentalization of these prohibited wildlife species within States will lead to additional State restrictions.

Our Response: Regulating the prohibited wildlife species and public safety at the State or local level is not the purpose of the CWSA. In fact, Congress specifically provided that nothing in the CWSA preempts or supercedes the authority of a State to regulate those species within the State. Rather, the CWSA makes it illegal to import, export, transport, sell, receive, acquire, or purchase, in interstate or foreign commerce, any prohibited wildlife species. We will welcome the coordination of the enforcement of the CWSA at all levels of government when there are opportunities for State or local government involvement. Information on the State prohibitions in the preamble of the proposed rule was included in a U.S. Senate Report that was drafted during the development of the CWSA. This information was included for informational purposes in the proposed rule and this final rule, but was not used in the development of our regulations to implement the CWSA.

We received three comments suggesting that the direct contact prohibition for accredited wildlife sanctuaries should be extended to keepers and caregivers and that these keepers and caregivers should be properly trained professionals and that the direct contact prohibition in the CWSA is already prohibited or heavily regulated by APHIS under the AWA.

Our Response: It was Congress' intent that the direct contact restriction in the CWSA apply only to accredited wildlife sanctuaries. The extent to which direct contact is already regulated under the AWA must be determined by APHIS. If an entity becomes licensed or registered by APHIS, it would be entitled to the APHIS exemption contained in the CWSA, regardless of whether it qualifies for the accredited wildlife sanctuary exemption.

We received one comment stating that there needs to be clarification of the method to obtain a CBW registration in order to prevent a CBW registration from becoming a loophole to obtain the prohibited wildlife species under the CWSA.

Our Response: Under our CBW regulations (50 CFR 17.21), individuals may export; re-import; deliver, receive, carry, transport or ship in interstate or foreign commerce in the course of a commercial activity; or sell or offer for sale in interstate or foreign commerce certain endangered wildlife species as long as specific requirements are met. Prohibited wildlife species under the CWSA that are eligible for CBW regulation are the tiger, leopard, snow leopard, clouded leopard, jaguar, and cheetah. The new CWSA restrictions are in addition to the CBW regulations. Any person who wishes to engage in the specified activities authorized by the CWSA who is also regulated under the CBW regulations must comply with both, unless they qualify under one of the CWSA exemptions.

We received two comments stating that the CWSA violates the Constitutional right to freedom of religion and will have a negative impact on the human environment regarding, for example, the spiritual bond between an owner and a big cat.

Our Response: Everyone has the right to freedom of thought, conscience, and religion. The law is clear, however, that religious beliefs do not allow people to engage in unlawful activities that could potentially endanger public safety. This regulation is based on the CWSA, the purpose of which is to amend the Lacey Act amendments of 1981 to further the conservation of certain wildlife species and to protect the public from dangerous animals. The Government has a clear and compelling interest in regulating activities that have been shown to be harmful to public health or safety. These regulations and the CWSA are neutral. Any person may seek to qualify for one of the exemptions under the CWSA; they need only meet the requirements for the exemption. In addition, nothing in the CWSA or these regulations prohibits possession of these species or limits use or movement of these species within a State. The CWSA limits only the ability to import, export, transport, sell, receive, acquire, or purchase, in interstate or foreign commerce, the prohibited wildlife species.

We received one comment stating that Native Americans should be exempt from the prohibitions for cougars.

Our Response: Congress did not provide an exemption for Native American use of cougars. Therefore, Native Americans must meet the same regulatory requirements as other individuals who import, export, transport, sell, receive, acquire, or purchase, in interstate or foreign commerce, the prohibited wildlife species.

We received two comments stating that financial assistance should be provided to assist organizations that are developing new techniques for the care and maintenance of the prohibited wildlife species and to establish sanctuaries that will be needed for the placement of these prohibited wildlife species resulting from CWSA prohibitions.

Our Response: This rulemaking establishes regulations that will enable us to enforce the CWSA. Providing financial assistance from funds allocated under the CWSA or funds from other sources is beyond the scope of this rulemaking.

We received one comment stating that the CWSA subverts the original intent of the Lacey Act.

Our Response: Congress chose to regulate certain activities with wildlife under the Lacey Act. Congress has now determined that it is appropriate to regulate similar activities with the listed species, and chose to adopt these measures through amendment of the Lacey Act.

We received one comment stating that the CWSA is raising a novel issue, under Executive Order 12866, by making illegal an activity that is currently legal.

Our Response: Laws often make formerly legal activities illegal. These regulations, as required under the CWSA, implement that law.

We received one comment stating that the CWSA may result in takings, under Executive Order 12630, when an individual is moving a big cat across State lines.

Our Response: We have analyzed this regulation under Executive Order 12630 and have determined that it does not result in takings. This rule only prohibits importing, exporting, transporting, selling, receiving, acquiring, or purchasing, in interstate or foreign commerce, of the prohibited wildlife species. This rule does not directly result in physical occupancy or acquisition of property or physical invasion of property by the Government without compensation.

Furthermore, this rule also does not result in a regulatory taking. The CWSA serves a legitimate public interest by promoting public safety and preventing interstate exploitation of the prohibited wildlife species. The rule does not so severely restrict the owner's use of his or her property as to deprive the owner of all economically beneficial use of the property. The owner may still possess big cat species or buy or sell them within the owner's State. Also, an owner who is relocating to another State may move his or her big cat if exempted under 50 CFR 14.255.

In 2003, Congress enacted the CWSA to prohibit the import, export, sale, receipt, acquisition or purchase, in interstate or foreign commerce, of certain live wildlife species except by persons who meet the criteria of specific, listed exemptions. The new prohibitions become applicable on the effective date of final regulations that implement the statutory provisions. Thus, with this final rule, it will be unlawful for any person to engage in the prohibited activities unless they qualify under one of the exemptions.

This rule has been reviewed by OMB under Executive Order 12866. Under the criteria in Executive Order 12866, this rule is not a significant regulatory action.

a. This rule will not have an annual economic effect of $100 million or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. A cost-benefit and economic analysis is not required.

The purpose of this rule is to regulate the movement of the prohibited wildlife species and to provide improved safety for the public by limiting the exception for accredited wildlife sanctuaries to those that prohibit direct contact with the prohibited wildlife species. The ESA already regulates the interstate sale or movement of tigers, leopards, snow leopards, clouded leopards, jaguars, and cheetahs. The CWSA would, therefore, have no substantial additional impact on commerce. Our records indicate that in the period from 2001 through 2003: 164 tigers were imported, and 123 were exported; 53 leopards were imported, and 39 were exported; 2 snow leopards were imported, and 4 were exported; 9 jaguars were imported, and 5 were exported; and 43 cheetahs were imported. These specimens were imported or exported by organizations who qualified for authorizations under the ESA and who would likely qualify for one of the exemptions contained in the CWSA. Therefore, the CWSA would not have any substantial economic effect by restricting importations or exportations of these species.

Under our CBW regulations (50 CFR 17.21), individuals may export; re-import; deliver, receive, carry, transport or ship in interstate or foreign commerce in the course of a commercial activity; or sell or offer for sale in interstate or foreign commerce certain endangered wildlife species as long as specific requirements are met. Prohibited wildlife species under the CWSA that are eligible for CBW regulation include tigers, leopards, snow leopards, clouded leopards, jaguars, and cheetahs. There are approximately 350 approved CBW registrations, of which approximately 100 authorize activities with the prohibited wildlife species in the CWSA. However, it must be noted that most, if not all, CBW registration holders are APHIS licensed and are therefore exempted from the provisions of the CWSA. Therefore, the CWSA would not have any substantial economic effect on this segment of the live animal industry by restricting activities currently authorized under CBW regulation.

CITES prohibits most trade in tigers, leopards, snow leopards, clouded leopards, jaguars, and cheetahs. However, CITES regulates, though does not necessarily prohibit, the international trade of African lions and cougars. The CWSA could, therefore, have some impact on limiting imports or exports of African lions and cougars. Our records indicate that, in the period from 2001 through 2003, 22 African lions were imported and 15 were exported, and 14 cougars were imported and 19 were exported. Some of these importations or exportations may have been for commercial purposes; however, most, if not all, of the individuals who would be importing or exporting live African lions and cougars would probably qualify for one of the exemptions contained in the CWSA. Therefore, the CWSA would not have any substantial economic effect by restricting importations or exportations of these species.

The CWSA will prohibit the import, export, transport, sale, receipt, acquisition or purchase in interstate or foreign commerce, of African lions and cougars by individuals or businesses that would not qualify for one of the exemptions contained in the CWSA, even if those by individuals or businesses would qualify under CITES. Because we believe that there are very few people in this category, these restrictions are not expected to have a substantial economic effect on this segment of the live animal industry.

The CWSA will have its greatest potential impact on the import, export, transport, sale, receipt, acquisition, or purchase, in interstate or foreign commerce, of hybrids produced from the breeding of any combination of any of the prohibited wildlife species, by individuals who would not qualify for one of the exemptions contained in the CWSA. Hybrids produced from the breeding of any combination of tigers, leopards, snow leopards, clouded leopards, jaguars, or cheetahs would be exempt from the provisions of the ESA but not from the provisions of the CWSA. Generally speaking, the most common hybrids resulting from the breeding of any combination of any of the prohibited wildlife species would the liger (a male lion and a female tiger) or the tiglon (a male tiger and a female lion). Numerous Web sites promote the existence of these hybrids, suggesting that there may be some demand for these animals for use as pets or for display purposes. We do not maintain domestic trade data on these hybrids; therefore, it is difficult to estimate the impact the CWSA will have on this segment of the live animal industry.

In addition to amending the Lacey Act by adding prohibitions that make it illegal to import, export, transport, sell, receive, acquire, or purchase, in interstate or foreign commerce, the prohibited wildlife species, the CWSA provides exemptions to these prohibitions for certain persons. Becoming eligible for these exemptions should not have any substantial economic effect on this segment of the live animal industry.

The only direct costs to be assumed by individuals who seek an exemption to the prohibitions of the CWSA would be the costs associated with the application process and with meeting APHIS compliance requirements to become licensed or registered under the AWA and the costs associated with meeting compliance requirements in order to become a State-licensed wildlife rehabilitator.

The costs for meeting APHIS compliance requirements under the AWA are difficult to quantify because these costs are extremely variable, depending on the nature of the business of the individual who seeks to become licensed or registered. Application costs will vary, depending on the nature of the business of the individual. Licenses issued by APHIS under the AWA must be renewed every year with a standard application fee of $10.00. Additional application costs are based upon the nature of the business of the individual and the size of that business. Additional application costs for animal exhibitors can range from $30.00 to $300.00 per year, depending on the number of animals on exhibit. Additional application costs for animal dealers can range from $30.00 to $500.00 per year, depending on the anticipated annual income of the business.

In addition to application fees, the costs for meeting APHIS compliance requirements can vary, depending on the current facilities maintained by the individual and to what degree those facilities meet those requirements. Construction costs for new facilities may also need to be increased in order to achieve compliance.

The costs for meeting compliance requirements in order to become a State-licensed wildlife rehabilitator are difficult to quantify because these costs are extremely variable, depending on the State where the applicant resides and the current facilities maintained by the individual and to what degree those facilities meet those requirements.

Each wildlife sanctuary that intends to qualify under the exemption to the prohibitions of the CWSA is prohibited from commercially trading in the prohibited wildlife species or the species' offspring, parts, or byproducts, and from propagating any of the prohibited wildlife species. Though this requirement may result in lost revenue for the sanctuary, it is not expected to result in a substantial negative economic effect for sanctuaries as a whole. In addition, if the owner of a sanctuary chooses to commercially trade in the prohibited wildlife species, he or she should become licensed or registered with APHIS under the AWA, and would thus qualify for that exemption in the CWSA.

The CWSA provides an exemption for individuals transporting live specimens of the prohibited wildlife species between individuals who qualify for one of the other exemptions provided in the CWSA. This rule requires that the transporting individuals produce evidence to prove that they are transporting specimens between other exempted individuals. However, these requirements would not increase costs for the transporting individuals because APHIS already requires these individuals to be registered by meeting similar requirements.

In addition to amending the Lacey Act by adding prohibitions that make it illegal to import, export, transport, sell, receive, acquire, or purchase, in interstate or foreign commerce, the prohibited wildlife species, the CWSA provides improved safety for the public by limiting the exception for accredited wildlife sanctuaries to those that prohibit direct contact with the prohibited wildlife species. Activities that might result in direct contact between the prohibited wildlife species and any member of the public, such as photography, play sessions, or offsite programs, would prevent an otherwise accredited wildlife sanctuary from qualifying for the exemption. Though this requirement may result in lost revenue for sanctuaries, it is not expected to result in a substantial negative economic effect for wildlife sanctuaries as a whole.

b. This rule will not create inconsistencies with other agencies' actions.

We are the lead Federal agency regulating international wildlife trade, the issuance of permits to conduct activities affecting federally protected wildlife and their habitats, and carrying out the United States' obligations under CITES. Therefore, this rule has no effect on other agencies' responsibilities and will not create inconsistencies with other agencies' actions.

In addition, 19 States prohibit the private possession of big cats, and 16 States have a partial ban on possession of big cats or require permits for their possession. Therefore, the CWSA does not create inconsistencies with these States'restrictions, but rather supports them.

c. This rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.

This rule will not change the fee schedule for any permits issued by us or any licenses or registrations issued by APHIS.

d. This rule will not raise novel legal or policy issues.

This rule will not raise novel legal or policy issues because it is based upon Congress's passage of the CWSA, which reflects a heightened concern for public safety resulting from the increased trade in the prohibited wildlife species for use as pets and the increased risk of danger to members of the public when given opportunities for direct contact with the prohibited wildlife species.

The Department of the Interior has determined that this rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). An initial regulatory flexibility analysis is not required. In addition, a Small Entity Compliance Guide is not required.

This rule regulates businesses that commercially trade in the prohibited wildlife species in interstate or foreign commerce. The purpose of this rule is to regulate the movement of these prohibited wildlife species and to provide improved safety for the public by limiting the exception for accredited wildlife sanctuaries to those that prohibit direct contact with the prohibited wildlife species.

Most of the businesses that commercially trade in the prohibited wildlife species in interstate or foreign commerce, would be considered small businesses as defined under the Regulatory Flexibility Act. These businesses are most logically placed in three primary industries: Zoos and Botanical Gardens; Nature Parks and Other Similar Institutions; and All Other Animal Production. The SBA size standard for the first two industries is $6 million in average annual receipts, and the SBA size standard for the third industry is $750,000 in average annual receipts. However, it should be noted that the nature of these businesses would require that most, if not all, of them must be licensed or registered under the AWA by APHIS, making them eligible for one of the exemptions provided in the CWSA. However, we recognize that there may be a small number of small businesses that do not fit into any of the above categories and are not eligible for one of the exemptions provided in the CWSA.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act.

a. This rule does not have an annual effect on the economy of $100 million or more.

For the reasons described above, we have determined that this rule will not have an annual effect on the economy of $100 million or more. It is not anticipated that the restrictions imposed by the CWSA and the costs to become eligible for the exemptions contained in the CWSA will amount to an annual effect on the economy of $100 million or more.

b. This rule will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

The CWSA provides exemptions to its prohibitions for certain persons. Becoming eligible for these exemptions will increase costs for the live animal industry; however, as described above, we do not expect these increased costs to be major. The only direct costs to be assumed by individuals who seek an exemption to the prohibitions of the CWSA would be the costs associated with the application process and meeting compliance requirements in order to become licensed or registered under the AWA with APHIS, and the costs associated with meeting compliance requirements in order to become a State-licensed wildlife rehabilitator.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

The CWSA will not have significant adverse effects on the ability of U.S.-based enterprises to compete with foreign-based enterprises because foreign-based enterprises that are subject to U.S. jurisdiction must comply with the same regulatory requirements as U.S.-based enterprises who buy or sell the prohibited wildlife species in interstate or foreign commerce.

Under the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), this rule will have no effects.

a. This rule will not significantly or uniquely affect small governments. A Small Government Agency Plan is not required.

We are the lead Federal agency regulating international wildlife trade, the issuance of permits to conduct activities affecting federally protected wildlife and their habitats, and carrying out the United States' obligations under CITES. No small government assistance or impact is expected as a result of this rule.

b. This rule will not produce a Federal requirement that may result in the combined expenditure by State, local, or tribal governments of $100 million or greater in any year, so it is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

This rule will not result in any combined expenditure by State, local, or tribal governments.

Under Executive Order 12630, this rule does not have significant takings implications. Under Executive Order 12630, this rule does not affect any constitutionally protected property rights. We have analyzed this regulation under Executive Order 12630 and have determined that it does not result in takings. This rule only prohibits importing, exporting, transporting, selling, receiving, acquiring, or purchasing, in interstate or foreign commerce, of the prohibited wildlife species. This rule does not result in physical occupancy of property or physical invasion of property by the Government.

Furthermore, this rule also does not result in a regulatory taking. The CWSA serves a legitimate public interest by promoting public safety and preventing interstate exploitation of the prohibited wildlife species. The rule does not so severely restrict the owner's use of his or her property as to deprive the owner of all economically beneficial use of the property. The owner may still possess big cat species or buy or sell them within the owner's State. Also, an owner who is relocating to another State may move his or her big cat if exempted under 50 CFR 14.255.

Under Executive Order 13132, this rule does not have significant Federalism effects. A Federalism assessment is not required. This rule will not have a substantial direct effect on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Addressing the prohibited wildlife species and public safety at the State or local level is not the purpose of the CWSA. The CWSA does not take precedence over State law. The CWSA makes it illegal to import, export, transport, sell, receive, acquire, or purchase, in interstate or foreign commerce, the prohibited wildlife species.

Under Executive Order 12988, the Office of the Solicitor has determined that this rule does not overly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. Specifically, this rule has been reviewed to eliminate errors and ensure clarity, has been written to minimize lawsuits, provides a clear legal standard for affected actions, and specifies in clear language the effect on existing Federal law or regulation.

This rule contains new information collection requirements for which OMB approval is required under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. We may not conduct or sponsor and you are not required to respond to an information collection unless it displays a currently valid OMB control number.

The information collection associated with this rule has been approved under OMB control number 1018-0129, which expires on June 30, 2010.

We are requiring wildlife sanctuaries that seek to qualify as an “accredited wildlife sanctuary” under the CWSA to maintain complete and accurate records of any possession, transportation, acquisition, disposition, importation, or exportation of the prohibited wildlife species. These records must be up to date, and include: (1) The names and addresses of persons to or from whom any prohibited wildlife species has been acquired, imported, exported, purchased, sold, or otherwise transferred; and (2) the dates of these transactions. Accredited wildlife sanctuaries must maintain these records for 5 years, must make these records accessible to Service officials for inspection at reasonable hours, and must copy these records for Service officials, if requested. This rule does not contain any requirement that wildlife sanctuaries must submit an application to qualify as an “accredited wildlife sanctuary.”

The requirement to make records available will be initiated on an as-needed basis. We estimate that there are no more than 750 wildlife sanctuaries that could qualify for the “accredited wildlife sanctuary” exemption.

We do not anticipate that this recordkeeping requirement will impose any significant burden, because the maintenance of these records is typically a normal business practice. Most wildlife sanctuaries will likely only have custody of a limited number of specimens of the prohibited wildlife species. Therefore, complying with the requirement to make records available can likely be met by making available and copying, if needed, a small number of documents pertaining to the possession, transportation, acquisition, disposition, importation, or exportation of the prohibited wildlife species, which we estimate can be completed in an hour or less. The total estimated annual burden for complying with this recordkeeping requirement for all of these wildlife sanctuaries combined should be 750 hours or less. We estimate that the average wage of individuals likely to be providing these documents is $20.00 per hour. Therefore, the total estimated cost of this recordkeeping requirement for all of these wildlife sanctuaries would be $15,000.00, if we requested that all wildlife sanctuaries copy their records. The estimated annual cost of this recordkeeping requirement for each wildlife sanctuary is $20.00.

This rule has been analyzed under the criteria of the National Environmental Policy Act and 318 DM 2.2 (g) and 6.3 (D). This rule does not amount to a major Federal action significantly affecting the quality of the human environment. An environmental impact statement/evaluation is not required. This rule is categorically excluded from further National Environmental Policy Act requirements, under part 516 of the Departmental Manual, Chapter 2, Appendix 1.10. This rule is a regulation that is of an administrative, legal, technical, or procedural nature and its environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis under NEPA.

Under the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and 512 DM 2, we have evaluated possible effects on federally recognized Indian tribes and have determined that there are no adverse effects. Individual tribal members must meet the same regulatory requirements as other individuals who import, export, transport, sell, receive, acquire, or purchase, in interstate or foreign commerce, the prohibited wildlife species.

On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. The purpose of this rule is to regulate the movement of the prohibited wildlife species and to provide improved safety for the public by limiting the exception for accredited wildlife sanctuaries to those that prohibit direct contact with the prohibited wildlife species. This rule is not a significant regulatory action under Executive Order 12866 and it is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.

The originator of this final rule is Mark Phillips, OLE, U.S. Fish and Wildlife Service, Washington, DC.